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Bowles v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

February 19, 2016

BLAKE BARRY BOWLES, Petitioner,
v.
HAROLD CLARKE, DIRECTOR, Respondent.

MEMORANDUM OPINION

Hon. Glen E. Conrad Chief United States District Judge.

Blake Barry Bowles, 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 his conviction for second degree murder.[1] After review of the record, the court concludes that the motion to dismiss must be granted.

I.

Bowles faced trial in Charlottesville Circuit Court on a charge of first degree murder in the death of his wife, who was stabbed over a dozen times. Among other evidence presented to the jury was Bowles' videotaped confession. Bowles' defense was that he became enraged after believing that his wife was cheating on him. The Circuit Court included an instruction allowing the jury to consider the lesser included offenses of second degree murder and manslaughter. The jury found Bowles guilty of second degree murder and recommended a sentence of fifteen years in prison. The court issued its final order on September 17, 2012, imposing the sentence recommended by the jury. Bowles did not appeal his conviction or sentence.

Bowles filed a pro se petition for a writ of habeas corpus in May 2013 in the Charlottesville Circuit Court. (CL13-203.) He alleged two claims for relief: (1) trial counsel was ineffective when he "refused to do petitioner's direct appeal after being instructed to do so"; and (2) trial counsel was ineffective when he "failed to object to [the] prosecution['s] failure to disclose evidence favorable to the accused." (State Habeas Pet. Annex 1-2, ECF No. 14, at pp. 12-13.) The Circuit Court conducted an evidentiary hearing on Claim (1) that has been transcribed (hereinafter "Tr.").

Bowles testified that during trial, he pointed out inaccuracies in the Commonwealth's evidence, such as the prosecution's assertion that a recording of a 911 calf depicted Bowles and his wife arguing, when the voices on the recording were actually Bowles and his mother-in-law. Bowles testified that during four different conversations with counsel about his convictions and sentence, he told counsel, "I want to file an appeal based on Brady's violation" with regard to the 911 recording; counsel told Bowles, "[Y]ou don't have anything to appeal on. . . . [J]ust be grateful for the time that you have." (Tr. 7, 9, ECF No. 22.) Bowles testified that he wanted to appeal the prosecution's handling of the case, not the length of the sentence. (Tr. 14) ("I wouldn't have cared how much time they came back with if the truth would have been told."). Bowles admitted that after the June 2012 sentencing hearing, he never spoke or wrote to his counsel again about an appeal and did not write to the Circuit Court about an appeal.

Bowles' defense counsel testified that Bowles asked about an appeal immediately after the jury's guilty verdict, but counsel told him to wait to see what sentence the jury recommended. Counsel testified that the state sentencing guidelines in Bowles' case called for a "midpoint of roughly twenty years" in prison, with the low end of the guideline range at "fifteen years and some months." (Tr. 35.) When the jury recommended only fifteen years, counsel advised against an appeal. He told Bowles, "[T]here is nothing in this case that could get you an acquittal" and if an appeal resulted in a new trial on second degree murder, the sentence could be forty years, given the evidence of seventeen stab wounds and Bowles' nine prior felony convictions. (Tr. 30-31, 36.) Counsel testified that while there was a chance that a retrial could result in a manslaughter verdict for a maximum sentence of ten years, he told Bowles that the likelihood of such an outcome was low, while the likelihood of a more severe sentence after a retrial was high; counsel told Bowles, "You could do a lot worse on retrial. I wouldn't advise you to take that chance. . . . [A]re you willing to take that chance?" (Tr. 32.) According to counsel, Bowles "kind of shook his head" and said he "wasn't worried about the time."[2] (Tr. 32.) Counsel testified, "I'm certain [Bowles] never unequivocally asked us to file a petition" for appeal, but if he had done so, counsel would have "filed a notice of appeal, asked to be appointed for the appeal, away we would have gone." (Tr. 34.)

On June 20, 2014, the Circuit Court issued an eleven-page final order dismissing Bowles' habeas petition in its entirety. Bowles unsuccessfully appealed this order to the Supreme Court of Virginia.[3] (Record No. 140975.)

Bowles then filed a timely petition under § 2254, raising the same two claims for habeas relief that he presented in his state court petition. Respondent moved to dismiss under § 2254(d), and Bowles responded. Court records provided for review include the Circuit Court criminal and habeas files and the habeas appeal record from the Supreme Court of Virginia.

II.

To obtain federal habeas relief, petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under 28 U.S.C. § 2254(d), however, the federal habeas court may not grant a writ of habeas corpus based on any claim that a state court decided on the merits unless that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Williams v. Taylor.529 U.S. 362, 403-13 (2000). "Where, as here, the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable." Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Under this standard, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 66, 101 (2011) (omitting internal quotations). Factual determinations made by the state court are ...


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