United States District Court, E.D. Virginia, Norfolk Division
RAYSHAWN R. WILLIAMS, #1463377, Petitioner,
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
DOUGLAS E. MILLER, Magistrate Judge.
Petitioner Rayshawn R. Williams ("Williams") is a Virginia inmate currently serving a thirteen-year active sentence following his 2012 convictions for attempted murder, aggravated malicious wounding, and use of a firearm in the commission of both felonies. His pro si federal habeas petition under 28 U.S.C. § 2254 alleges four ineffective assistance of counsel claims. Respondent moved to dismiss the petition, and the matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b) (1) (B) - (C) and Rule 72 of the Federal Rules of Civil Procedure. For the reasons outlined below, the undersigned RECOMMENDS that the court deny Williams's claims, GRANT Respondent's motion (ECF No. 14), and DISMISS the petition.
I. STATEMENT OF THE CASE
In August 2012, following a bench trial in the Circuit Court of the City of Richmond, Williams was convicted of attempted murder in violation of Virginia Code § 18.2-26 and §18.2-32, aggravated malicious wounding in violation of Virginia Code § 18.2-51.2 (A), and two counts of use of a firearm in the commission of a felony in violation of Virginia Code § 18.2-53.1. Trial Tr. at 97-98, Commonwealth v. Williams, Nos. CR12-F-1871, CR12-F-1873, CR12-F-1874, CR12-F-4228 (Va. Cir. Ct. Aug. 2, 2012). On September 19, 2012, the court sentenced Williams to thirty-eight years' imprisonment with twenty-five years suspended, resulting in a thirteen-year active sentence. Sentencing Order, Commonwealth v. Williams, Nos. CR12-F-1871, CR12-F-1873, CR12-F-1874, CR12-F-4228 (Va. Cir. Ct. Oct. 9, 2012) (sentencing Williams to 20 years' imprisonment with 15 years suspended for the aggravated wounding charge; 10 years' imprisonment with 10 years suspended for the attempted murder charge; and 3 years' imprisonment and 5 years' imprisonment for the two firearm charges)
Williams, by counsel, appealed his conviction to the Court of Appeals of Virginia. Williams v. Commonwealth, No. 1879-12-2 (Va. Ct. App. June 26, 2013) (ECF No. 16-1, at 32-34). He argued that the evidence presented at trial as to the victim's impairment following the shooting was insufficient to support his convictions for aggravated malicious wounding and use of a firearm in commission of a felony. Am. Pet. for Appeal, Williams v. Commonwealth, No. 1879-12-2 (Va. Ct. App. May 10, 2013) (ECF No. 16-1, at 1-19). The Court of Appeals of Virginia denied his appeal, holding that "[t]he Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant was guilty of aggravated malicious wounding and use of a firearm in the commission of a felony and that [the victim] sustained a significant and permanent injury." Williams v. Commonwealth, No. 1879-12-2 (Va. Ct. App. June 26, 2013) (per curiam) (ECF No. 16-1, at 33). In denying his appeal, the Court of Appeals provided the following summary of the facts:
[T] he evidence showed that on the night of February 18, 2012, police were called to respond to a restaurant. The victim, Albert Smith, had been shot twice in the mouth and once in the back of his neck. At trial, the evidence showed that appellant had eaten in this restaurant earlier in the evening and then left. Witnesses testified that appellant's mother, Joyce Barber, was in the restaurant that evening, was belligerent towards another customer (her live-in boyfriend), and had to be escorted from the restaurant. Barber made threats of revenge as she was being escorted out of the restaurant. Appellant and Barber returned to the restaurant near closing time and appellant demanded to know, "Who is that mother fucker that bothered my mamma?" Barber pointed at Smith, and appellant displayed a gun and shot Smith three times. As a result of this incident. Smith was hospitalized for approximately one month and had to undergo six weeks of physical therapy. At the time of trial. Smith still experienced numbness in his left hand, numbness in his lower lip, and an inability to lift objects heavier than a gallon of milk.
Id. (ECF No. 16-1, at 32-33). Following the Court of Appeals' denial of Williams' appeal, he filed a motion for reconsideration, arguing that the court "did not adequately review the record." Mot. for Recons., Williams v. Commonwealth, No. 1879-12-2 (Va. Ct. App. June 26, 2013) (ECF No. 16-1, at 35). On October 31, 2013, the Court of Appeals denied his motion for reconsideration. Williams v. Commonwealth, No. 1879-12-2 (Va. Ct. App. Oct. 31, 2013) (ECF No. 16-1, at 38). The Supreme Court of Virginia refused Williams's appeal on June 14, 2014. Williams v. Commonwealth, No. 131834 (Va. June 13, 2014) (ECF No. 16-2, at 21). Williams then filed a petition for rehearing, which the Supreme Court of Virginia denied on September 19, 2014. Williams v. Commonwealth, No. 131834 (Va. Sept. 19, 2014) (ECF No. 16-2, at 27).
Williams did not file a petition for a writ of habeas corpus in state court. He timely filed his federal habeas petition pro se, and he filed an amended petition on November 6, 2015. Habeas Pet. (ECF No. 1); Am. Habeas Pet. (ECF No. 3). His petition alleges four claims for habeas relief, all of which allege ineffective assistance of counsel. Specifically, he argues that: (1) counsel failed to prepare a defense; (2) counsel failed to present exculpatory evidence; (3) counsel failed to conduct an independent investigation; and (4) counsel failed to raise the issue of double jeopardy. Am. Habeas Pet. (ECF No. 3, at 5-10).
The Respondent filed a motion to dismiss the petition, arguing that Williams's claims are simultaneously exhausted and defaulted because he did not present his claims in state court. Resp't's Br. (ECF No. 16, at 5-7). Williams received notice of the motion and his opportunity to respond, as required by Local Rule 7(K) and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Williams responded on February 16, 2016. Pet'r's Resp. (ECF No. 18). In his response, he sought to "remove [his] petition from the record" because he learned that he had failed to file a petition in state court. Id. at 1. Although Williams's sought to withdraw his federal habeas petition, this report recommends that the court resolve his current petition on the merits because he is time-barred from filing a state petition,  and as a result, his federal claims are simultaneously exhausted and defaulted, and the matter is ripe for review.
II. RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Williams Has Procedurally Defaulted His Claims.
Habeas petitions that challenge a state's custody over a petitioner must show that such custody violates the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Before seeking a writ of habeas corpus in federal court, petitioners must exhaust the remedies available to them in state court or demonstrate the absence or ineffectiveness of such remedies. Id . § 2254 (b)(1). That is, the state prisoner must give the state court an initial opportunity to consider the alleged constitutional errors that occurred in his state trial and sentencing. Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This is so because federal habeas review under § 2254 is limited to review of the state court's decision on a merits issue cognizable under federal law. "To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997); see Picard v. Connor, 404 U.S. 270, 275-76 (1971). This "generally requires that the essential legal theories and factual allegations advanced in federal court be the same as those advanced at least once to the highest state court." Pruett v. Thompson, 771 F.Supp. 1428, 1436 (E.D. Va. 1991), aff'd, 996 F.2d 1560 (4th Cir. 1993). In other words, Williams must have "present[ed] the same factual and legal claims raised in the instant petition to the Supreme Court of Virginia either by way of (i) a direct appeal, (ii) a state habeas corpus petition, or (ii) an appeal from a circuit court's denial of a state habeas petition." Sparrow v. Dir., Dep't of Corr., 439 F.Supp.2d 584, 587 (E.D. Va. 2006).
If a petitioner presents unexhausted claims, the court may dismiss the federal petition without prejudice to permit exhaustion. See, e.g., George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996). Alternatively, "[a] claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000). That is, if "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, ... federal habeas corpus review of the defaulted claim" is precluded, "unless the petitioner can demonstrate cause and prejudice for the default." Id . (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996).
Here, Williams did not raise his current claims on direct appeal, and he did not file a petition for a writ of habeas corpus in state court, meaning he did not present the factual and legal claims in his present federal petition to any state court. If Williams had filed a state habeas petition, under Virginia's habeas corpus statute of limitations, he would have had to file "within two years from the date of final judgment in the trial court or within one year from either final disposition of the direct appeal in state court or the time for filing such appeal has expired, whichever is later, " Va. Code § 8.01-654(A)(2). He failed to file a state habeas petition within this time period, and he is now barred from doing so under Virginia Code § 8.01-654(A)(2). See id. Because Virginia Code § 8.01-654 (A) (2) is an adequate and independent state procedural rule, Williams's federal claims are simultaneously exhausted and procedurally defaulted. See Ricks v. Virginia, No. 3:07cv296, 2008 WL 301992, at *3 (E.D. Va. Jan. 31, ...