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Akbar v. Clarke

United States District Court, E.D. Virginia

August 1, 2016

Alexandria Division Mohammed Bilal Akbar Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          ANTHONY J. TRENGA UNITED STATES DISTRICT JUDGE

         Mohammed Bilal Akbar, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions entered in the Loudoun County Circuit Court, Virginia. On April 14, 2016, respondent filed a Rule 5 Answer accompanied by a Motion to Dismiss and supporting brief. Dkt. Nos. 14, 15, 16. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and the matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss must be granted.

         I. Background

         Petitioner is detained pursuant to a final judgment of the Loudoun County Circuit Court entered on April 24, 2012. A jury convicted petitioner of robbery, in violation of Va. Code § 18.2-58, and use of a firearm in commission of a robbery, in violation of Va. Code § 18.2-53.1. Case Nos. 22458-00, -01; Dkt. No. 16, Ex. 2. Petitioner was sentenced to eight (8) years incarceration. Id.

         Petitioner appealed his convictions, contending that the trial court erred in denying his motion to set aside the verdict based upon the prosecutor's allegedly improper closing argument. Petitioner also argued that the trial court erred in refusing to consider mitigating evidence at sentencing, and that the trial court should have modified the jury's recommended sentence. The Court of Appeals of Virginia denied petitioner's appeal on November 29, 2012. Rec. No. 0795-12-4. A three-judge panel then upheld that denial on January 31, 2013. Id. Petitioner filed a second-tier appeal in the Supreme Court of Virginia, which refused his appeal on July 24, 2013. Rec. No. 130366. Petitioner's petition for rehearing was subsequently denied by the Supreme Court of Virginia on September 23, 2013. Id.

         After pursuing his direct appeal, on July 8, 2014 petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, raising the following grounds:

A. Petitioner was denied the effective assistance of counsel when counsel failed to ensure that petitioner was evaluated for youthful offender status at sentencing.
B. The circuit court never assumed jurisdiction over Mohammed Bilal Akbar, the petitioner, in his natural capacity. Since the Circuit Court never assumed jurisdiction over him, he could not be considered a natural person, and the only sentence he should have received under Va. Code § 18.2-10(g) was a fine.

Rec. No. 141057. On December 17, 2014, the Supreme Court of Virginia granted the respondent's Motion to Dismiss. Dkt. No. 16, Ex. C. The Supreme Court of Virginia then refused petitioner's petition for a rehearing on March 5, 2015. Dkt. No. 16, Ex. D.

         On March 9, 2015, petitioner filed a Motion to Vacate Void Judgment in the Loudoun County Circuit Court, arguing that the robbery indictment was insufficient as a matter of law under the Sixth Amendment Notice Clause and the Fourteenth Amendment Due Process Clause. Dkt. No. 16, Ex. E. Petitioner contended that Count 2 of the indictment, which alleged robbery, failed to inform him of any specific act or intent of the crime. Petitioner reasoned that because the robbery conviction was void due to the lack of notice in the indictment, the use of a firearm in aid of a robbery conviction (Count 1) ought to be vacated as well. Id. The Loudoun County Circuit Court denied petitioner's Motion to Vacate on April 15, 2015. Dkt. No. 16, Ex. F. The Supreme Court of Virginia refused petitioner's appeal of the denial on February 5, 2016. Dkt. No. 16, Ex. G.

         On or about March 16, 2015, petitioner filed the instant federal petition, wherein he challenges his convictions on the following grounds:

(1) Petitioner was denied due process when the robbery indictment did not clearly notify him of the crime with which he was accused. Because robbery is a common law crime in Virginia, neither the indictment nor the referenced statute set out the elements of the offense. Accordingly, the indictment was insufficient as a matter of law.
(2) Petitioner was denied due process because he was charged as a corporation, rather than as a natural person. Because Va. Code § 18.2-10(g) provides that defendants who are not natural persons are punishable by fine, rather than by imprisonment, the indictment was defective, and the trial court's sentencing order exceeded its jurisdiction under Va. Code § 18.2-10(g).
(3) Virginia does not have jurisdiction in personam over petitioner.
(4) Counsel was ineffective for failing to raise grounds 1-3.

See generally Dkt. No. 1.

         II. Exhaustion

         Exhaustion is a matter of comity to the state courts, and failure to exhaust requires dismissal from federal court so that the petitioner may present his claims to the state courts first. See 28 U.S.C. 2254(b); Granberry v. Greer. 481 U.S. 129 (1987); Rose v. Lundv. 455 U.S. 509 (1982); Preiser v. Rodriguez, 411 U.S. 475 (1973). To comply with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel. 526 U.S. 838, 845 (1999). Thus, the petitioner must present the same factual and legal claims raised in the instant case to the Supreme Court of Virginia on direct appeal or in a state habeas corpus petition. See Duncan v. Henry. 513 U.S. 364 (1995); Mallory v. Smith. 27 F.3d 991, 994 (4th Cir. 1994) ("mere similarity of claims is insufficient to exhaust" state remedies). In reviewing federal challenges to state proceedings, "[s]tate courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan, 526 U.S. at 844. Where questions concerning exhaustion arise, the petitioner bears the burden of demonstrating that he properly presented his claim, including the operative facts and controlling legal principles, to the state courts in accordance with the state's "chosen procedural scheme." Mallory, 27 F.3d at 995, see also Kasi v. Aneelone. 300 F.3d 487, 501-01 (4th Cir. 2002).

         Stated simply, in order to properly exhaust a claim prior to filing a § 2254, petitioner must have presented the same legal argument and factual support to the Supreme Court of Virginia on direct appeal, in an original jurisdiction state habeas corpus petition, or in a habeas appeal ...


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