United States District Court, W.D. Virginia, Roanoke Division
HON. GLEN E. CONRAD CHIEF UNITED STATES DISTRICT JUDGE.
Petitioner Steven Stuart Marks, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on three counts of aggravated sexual battery of a minor child. Upon review of the record, the court concludes that respondent's motion to dismiss must be granted.
Marks stood trial before a jury on October 2, 2009, in the Augusta County Circuit Court on indictments charging him with three counts of aggravated sexual battery of a child less than thirteen years of age, in violation of Virginia Code Ann. § 18.2-67.3. (CR09000036-00, -01, -02.) The jury found Marks guilty on all three counts. After conducting a sentencing hearing on February 25, 2010, and considering Marks' presentence report, the Circuit Court imposed three, consecutive, six-year terms of imprisonment, as recommended by the jury; however, the judge suspended three years of the sentence, for a total active sentence of fifteen years in prison.
Marks appealed unsuccessfully to the Court of Appeals of Virginia, Record No. 0447-10-3, and then to the Supreme Court of Virginia, Record No. 102254, which refused his appeal there on March 7, 2011. Marks then filed a petition for a writ of habeas corpus in the Circuit Court on March 7, 2012, which the Court dismissed with a lengthy opinion letter on April 30, 2014. (CL12000307-00.) The Supreme Court of Virginia refused his habeas appeal and, on March 5, 2015, denied Marks' petition for rehearing. (Record No. 141150.) Marks also filed a second petition for a writ of habeas corpus directly in the Supreme Court of Virginia on July 31, 2013. (Record No. 131214.) The Supreme Court of Virginia dismissed this petition on November 7, 2013, as untimely filed.
In his federal habeas petition, Marks alleges the following grounds for relief from his conviction: (A) the prosecutor failed to disclose exculpatory evidence; (B) defense counsel failed to conduct a proper pretrial investigation; (C) defense counsel failed to file the proper motions after discovering new evidence; (D) the trial evidence was insufficient; (E) defense counsel failed to challenge the weakness of the victim's testimony about the charge involving masturbation; asked questions that prompted testimony that helped the prosecution prove that charge; and failed to argue that the evidence did not show that the victim had touched petitioner's penis; (F) defense counsel failed to present photographs showing the layout of petitioner's house where the crimes occurred; (G) defense counsel failed to present additional testimony from petitioner; and (H) defense counsel's cumulative errors constituted ineffective assistance.
Respondent has filed a motion to dismiss, arguing that Marks' claims are procedurally barred from federal habeas review or without merit. Marks has responded to the motion, making the matter ripe for disposition.
sA. Procedural Default
"[A] federal court may not grant a writ of habeas corpus to a petitioner in state custody unless the petitioner has first exhausted his state remedies by presenting his claims to the highest state court." Baker v. Corcoran. 220 F.3d 276, 288 (4th Cir. 2000) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)). If a state court expressly bases its dismissal of a habeas claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the federal version of that habeas claim is also procedurally barred. Breard v. Pruett. 134 F.3d 615, 619 (4th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 731-32(1991)).
The parties admit that Marks has exhausted all of his claims. Three of his claims are procedurally defaulted, however. Marks presented Claims A, B, and C to the Supreme Court of Virginia in his second state habeas petition. The Court dismissed these claims as untimely under Virginia Code Ann. § 8.01-654(A)(2). This application of an independent and adequate state procedural default rule renders these claims procedurally barred in this court. See Weeks v. Angelone. 176 F.3d 249, 273-74 (4th Cir. 1999), affd, 528 U.S. 225 (2000). A federal habeas court may review the merits of such a procedurally defaulted claim if petitioner demonstrates cause for the default and actual prejudice resulting from the alleged constitutional error.
Breard, 134 F.3d at 620.
Marks' remaining claims are not procedurally defaulted. He presented Claim D on direct appeal. The Court of Appeals of Virginia addressed the claim on the merits, and the Supreme Court of Virginia refused the subsequent appeal in a summary order. Marks presented Claims E through H in his first state habeas petition, and the Circuit Court addressed them on the merits. The Supreme Court of Virginia then refused his subsequent petition for appeal, finding no reversible error. Accordingly, Claims D through H are not barred by procedural default, and this court may address them on the merits.
B. Failure to Show Cause
Marks argues that the court should also address the merits of defaulted Claims A, B, and C, because he can allegedly show cause for failing to file them with the state court in a timely manner. To show cause for his procedural defaults, Marks must identify "something external to the petitioner, something that cannot fairly be attributed to him [that]... impeded [his] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (internal quotation marks and citations omitted). An error by trial or appellate counsel may establish cause for the procedural default of some other constitutional claim, but only if (1) the error meets the two-part standard for constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 686-87 (1984); and (2) the ineffective assistance claim has not been procedurally defaulted under state law. Edwards v. Carpenter. 529 U.S. 446, 451-53 (2000).
Marks asserts that his three defaulted claims are based on "new" evidence that he first discovered, with due diligence, after the time limit for filing a state habeas petition. See Va. Code Ann. § 8.01-654(a)(2). This allegedly "new" evidence is information included in his presentence report about the initial complaint the minor victim (hereinafter "M.G.") made to law enforcement in May 2008. Marks claims that from 2008 to 2011, during trial and appeal proceedings, he never saw these prior statements by M.G. At sentencing and thereafter, his attorneys allegedly advised him that state law prohibited him from possessing his presentence report. In fact, the applicable statute was amended in 2005, before Marks was sentenced, to allow counsel to provide the accused with a copy of the report. See Va. Code Ann. § 19.2-299(A). According to Marks, in August 2012, while his initial state habeas petition was pending in the Augusta County Circuit Court, his habeas attorney discovered the statutory change, and Marks first obtained a copy of the presentence report from his trial attorney. Under Virginia Code Ann. § 8.01-654(a)(2), however, Marks only had until March 2012 (one year from the completion of his direct appeal in March 2011) to file state habeas claims challenging his convictions. By the time he obtained his presentence report, that time period had elapsed.
Marks contends that counsels' failure to provide him the presentence report earlier, based on their deficient research of state law, prevented him from timely discovery of the factual basis of Claims A, B, and C, and should serve as cause to excuse his defaults. Marks made the same argument to the Supreme Court of Virginia in his 2013 habeas petition. The Supreme Court, however, dismissed the entire petition as untimely under § 8.01-654(a)(2). Therefore, Marks' claim of ineffective assistance concerning possession of his presentence report is procedurally defaulted. See Weeks, 176 F.3d at 273-74. As such, this claim cannot serve as cause to excuse default of any other constitutional claims, Edwards, 529 U.S. at 451-53, and Marks fails to offer any other circumstance that constitutes cause. In any event, Marks' defaulted claims all fail on the merits, because he has not shown a reasonable probability that earlier disclosure and use of M.G.'s prior statements would have resulted in a more favorable outcome at trial.
C. Claims A, B, and C: Lack of Merit
In Claim A, Marks asserts that the prosecution wrongfully suppressed M.G.'s prior statements. See Brady v. Maryland, 373 U.S. 83 (1963). Such a Brady claim has three fundamental components: "(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State; and (3) the evidence must be material to the defense, that is, prejudice must . . . ensue[ ]." Walker v. Kelly. 589 F.3d 127, 137 (4th Cir. 2009) (internal quotation marks and citation omitted). "Undisclosed evidence is material when its cumulative effect is such that 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" United States v. Sterling, 724 F.3d 482, 511 (4th Cir. 2013) (quoting Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)).
Procedurally defaulted Claims B and C allege that counsel should have uncovered M.G.'s prior statements during pretrial investigation for impeachment use during trial or should have used those statements to challenge the guilty verdicts. These claims both require a showing that counsel's alleged deficiency resulted in prejudice-using a legal theory identical to the materiality element of a Brady claim. Under the established ineffective assistance standard in Strickland v. Washington, "a court making the prejudice inquiry must ask if the defendant has met ...