United States District Court, E.D. Virginia, Alexandria Division
ANTHONY J. TRERGA UNITED STATES DISTRICT JUDGE
Michael Keith Lambert, a Virginia inmate proceeding through counsel, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of second degree murder and use of a firearm in committing that offense entered on a plea of guilty in Prince William County Circuit Court. In particular, Lambert contends that the Supreme Court of Virginia failed to implement a writ of habeas corpus previously granted to him by the United States Court of Appeals for the Fourth Circuit because it denied relief based upon procedural defects in his claims. Respondent has filed a Motion to Dismiss the petition, along with a supporting brief and exhibits, to which petitioner has filed a memorandum in opposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed.
On September 18, 2003, Lambert shot and killed his wife, Sharon Lambert. He appeared for trial on June 4, 2004, and pleaded guilty to second degree murder during arraignment. When the trial court inquired during the colloquy if Lambert was pleading guilty because he was, in fact, guilty, Lambert responded, "I plead guilty because I can't prove otherwise. I mean I couldn't - there was no evidence collected to defend me. Everything I've seen is against me." With that, the court stopped the colloquy, advised Lambert's counsel to speak with him, and declared a recess. When the proceeding reconvened, the colloquy continued, and the court ultimately accepted the plea and found Lambert guilty. Lambert received a sentence of 43 years imprisonment with 13 years suspended. Case Nos. CR05057716 and CR05057717.
Lambert filed no direct appeal.
On November 6, 2006, Lambert filed a pro se petition for a writ of habeas corpus pursuant to §2254 in the United States District Court for the Eastern District of Virginia. Lambert v. Johnson. Case No. 2:06cv631. The petition set out several claims for relief: (1) ineffective assistance of counsel for seven reasons, including failure to inform him of his appeal rights; (2) his Alford plea was not voluntarily or intelligently entered; (3) denial of his right to appeal due to counsel's failure to prepare a notice of appeal or advise him of his right to appeal; and (4) "biased judge, prejudicial atmosphere, enhancement outside PIC guidelines and plea agreement." On July 24, 2007, a United States Magistrate Judge issued a 57-page Report and Recommendation concluding that the petition should be denied. (Dkt. No. 20) After petitioner submitted objections, United States District Judge Rebecca Beach Smith entered a Final Order adopting and approving the magistrate's report, denying and dismissing the petition, and declining to issue a certificate of appealability. (Dkt. No. 24)
Lambert appealed the dismissal of his §2254 application to the Fourth Circuit Court of Appeals. Lambert v. Johnson. Case No. 07-7492. By Order filed July 29, 2008, the court granted Lambert a certificate of appealability "on Lambert's claim that his sentencing attorney was ineffective in failing to consult with him regarding an appeal. We DENY a certificate of appealability on all other issues and dismiss Lambert's appeal therefrom." (Dkt. No. 18) On May 22, 2009, prior to briefing, the appellate court appointed counsel for Lambert. (Dkt. No. 26) In an unpublished opinion, the Fourth Circuit vacated and remanded the dismissal of Lambert's habeas petition, stating in relevant part as follows:
... Lambert pleaded guilty to second-degree murder in state court for the death of his wife. Lambert's brief consultation with counsel regarding his Alford plea occurred in open court. After conducting a short colloquy, the court accepted Lambert's plea. At sentencing, the prosecutor proffered victim impact statements and argued for an upward departure from the state sentencing guidelines even though the plea agreement provided that the state would not recommend a sentence. The court accepted the prosecutor's recommendation and sentenced Lambert to 43 years' imprisonment. Lambert expressed dissatisfaction with this result, but his counsel never advised him of the right to appeal. Lambert exhausted post-conviction remedies under state law and filed this habeas petition claiming ineffective assistance of counsel.
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In this case, trial counsel admits he did not advise Lambert of his right to appeal. Had Lambert known of his appellate rights, he could have asserted three nonfrivolous arguments challenging his conviction and sentence: (1) the validity of his guilty plea, (2) the Commonwealth's alleged breach of the plea agreement, and (3) the trial court's admission of victim impact statements in violation of state law. Lambert reasonably demonstrated interest in pursuing an appeal by expressing dissatisfaction shortly after the sentence was imposed. See Frazer v. South Carolina. 430 F.3d 696, 712 (4th Cir. 2005) (noting that interest in appeal demonstrated by expression of dissatisfaction). The state court's contrary determinations are unreasonable application of federal law; the District Court erred by denying the writ.
The order of the District Court will be VACATED and the case REMANDED. On remand, the District Court shall grant the writ of habeas corpus allowing Lambert to pursue his appeal in state court.
Lambert v. Johnson, 387 F.App'x 372, 2010 WL 2711309 (4th Cir. July 6, 2010).
Pursuant to the appellate opinion and ensuing mandate, Judge Smith entered a Final Order in Case No. 2:06cv631 on August 2, 2010, holding that "the Petition for Writ of Habeas Corpus is GRANTED to allow petitioner Lambert to pursue his appeal in state court." (Dkt. No. 39)
On March 21, 2011, Lambert, now with the assistance of counsel, filed a petition for delayed appeal in the Court of Appeals of Virginia, raising three claims:
1. The trial court erred by interposing a "modified" Alford plea during the plea colloquy and then accepting that plea, which was not entered knowingly, voluntarily, or intelligently.
2. The trial court erred by permitting the Commonwealth, in breach of the plea agreement, to make a recommendation regarding Lambert's sentence when the Commonwealth had plainly agreed to make "no recommendation" as to sentence.
3. The trial court erred in admitting and relying on victim impact testimony presented during Lambert's sentencing hearing in violation of Virginia law.
Resp. Ex. 1 at 5.
On July 29, 2011, the Court of Appeals of Virginia denied the petition. As to the first, compound assignment of error, the court addressed each argument separately, holding that: (a) "the trial court did not erroneously interpose a modified Alford plea nor improperly participate in plea discussions in violation of the Rules;" and (b) "[b]ecause appellant freely, voluntarily, and knowingly pled guilty, Rule 5A:18 precludes consideration of appellant's argument [that the plea was not knowing and voluntary] on appeal... Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18."
Lambert v. Commonwealth, R. No. 2417-10-4 (Va. Ct. App. July 29, 2011), slip op. at 5, 6 (citation omitted); Resp. Ex. 2.
As to the second assignment of error, that the Commonwealth's Attorney breached the plea agreement by recommending a ...