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Fisher v. Director, VA Dept. of Corr.

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

September 29, 2016

RICHARD DALE FISHER, JR., Petitioner,
v.
DIRECTOR, VA DEPT. OF CORR., Respondent.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         Richard Dale Fisher, Jr., a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his criminal judgment entered by the Pittsylvania County Circuit Court. This matter is before the court on respondent's motion to dismiss. After reviewing the record, the court grants respondent's motion and dismisses the petition.

         I.

         On February 12, 2013, after a jury trial, the Pittsylvania County Circuit Court entered a final order convicting Fisher of raping a twelve year old child, in violation of Virginia Code § 18.2-61(A)(iii), [1] and sentencing him to a total of twenty years incarceration. On appeal, Fisher challenged the sufficiency of the evidence. Specifically, Fisher claimed that the evidence did not establish that his penis penetrated the victim's vagina and that her testimony was inherently incredible because she made at least three prior inconsistent statements. The Court of Appeals denied Fisher's petition on September 12, 2013, finding that his penetration claim was defaulted and that his credibility claim lacked merit.[2] Fisher appealed, and the Supreme Court of Virginia refused his appeal and request for rehearing on June 18, 2014, and October 6, 2014, respectively. Fisher filed a timely petition for a writ of habeas corpus in the Supreme Court of Virginia, claiming that the evidence at trial was insufficient to support a finding of penetration. The court found that the claim was barred because the non-jurisdictional issue was raised and decided on direct appeal from the criminal conviction and, therefore, could not be raised in a habeas petition. The court also construed Fisher's petition to raise a claim that counsel was ineffective because counsel had a “lack of interest in the case.” However, the court found that the claim asserted conclusions or opinions without providing factual support and, consequently, it did not support the issuance of a writ of habeas corpus. The court dismissed Fisher's habeas petition on July 21, 2015. Fisher filed the instant habeas petition on November 30, 2015. See R. Gov. § 2254 Cases 3(d) (describing the prison-mailbox rule). Fisher challenges the sufficiency of the evidence to prove penetration and based on the victim's credibility. He also alleges that trial and appellate counsel were ineffective for numerous reasons.

         II.

         Fisher alleges that the evidence is insufficient to support his conviction of rape. Specifically, Fisher alleges that there was insufficient evidence of penetration and that the victim's testimony was not credible. Fisher exhausted both of these claims by presenting them to the Supreme Court of Virginia on direct appeal. The Court of Appeals of Virginia adjudicated Fisher's sufficiency of the evidence claims and rejected them, finding that the penetration claim was barred from review, that his credibility claim had no merit, and that there was sufficient evidence to support a finding of guilt beyond a reasonable doubt.[3] This court finds that Fisher's penetration claim is inexcusably defaulted on federal habeas review and that the state court's rejection of Fisher's credibility claim was not contrary to, or an unreasonable application of, clearly established federal law and was not based an unreasonable determination of the facts. Accordingly, the court grants respondent's motion to dismiss these claims.

         A.

         Fisher alleges that the evidence was insufficient to support his conviction for rape because there was insufficient evidence of penetration. The court finds that this claim is inexcusably defaulted and grants respondent's motion to dismiss.

         On direct appeal from Fisher's criminal conviction, the state court found Fisher's claim to be procedurally defaulted under the contemporaneous objection rule, Virginia Supreme Court Rule 5A:18.[4] Where a habeas petitioner has presented a claim that a state court has found to be procedurally defaulted, that determination is entitled to a presumption of correctness on federal habeas corpus review, Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988) (citing 28 U.S.C. § 2254(d)), provided two foundational requirements are met, Harris v. Reed, 489 U.S. 255, 262-63 (1989). First, the state court must have relied explicitly on the procedural ground to deny petitioner relief. Id. Second, the state procedural rule relied on to default petitioner's claim must be an independent and adequate state law ground for denying relief. Id. at 260; Ford v. Georgia, 498 U.S. 411, 423-24 (1991). When these two requirements have been met, federal courts may not review the barred claims absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris, 489 U.S. at 260. The United States Court of Appeals for the Fourth Circuit has found that Rule 5A:18 is an independent and adequate state law ground. See Weeks v. Angelone, 176 F.3d 249, 270 (4th Cir. 1999) (holding that Virginia Supreme Court Rule 5:25, which is identical to Rule 5A:18, is an adequate and independent ground for relief); King v. Dean, 955 F.2d 41 (4th Cir. 1992) (noting that a habeas petitioner's claims were procedurally barred due to the petitioner's failure to object in the trial court, as Rule 5A:18 requires); Saunders v. Clarke, No. 2:13cv90, 2014 U.S. Dist. LEXIS 38656, 2014 WL 1203016, at *3 (E.D. Va. March 24, 2014) (finding that Rule 5A:18 is an adequate and independent state law ground).

         Because Rule 5A:18 is an independent and adequate state law ground and the state court explicitly denied Fisher's claim on this ground, his claim is barred from federal habeas review unless he demonstrates cause and prejudice or a fundamental miscarriage of justice. Fisher makes no allegation to support a finding of cause, prejudice, or miscarriage of justice. Accordingly, the court finds that the claim is procedurally defaulted and will grant respondent's motion to dismiss this claim.[5]

         B.

         Fisher claims that the evidence was insufficient to support his rape conviction because the victim's testimony was not credible in light of his and his family's alibi testimony. The court dismisses this claim because the state court's adjudication was not contrary to, or an unreasonable application of, clearly established federal law or based an unreasonable determination of the facts.

         Federal habeas review of a claim challenging the constitutional sufficiency of the evidence supporting a conviction is limited to determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In determining whether the state court reasonably applied this principle, the federal habeas court must determine whether the state court's decision is minimally consistent with the record, Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir. 2000), and must give deference to the findings of fact made by both the trial and appellate courts, 28 U.S.C. § 2254(d); Howard v. Moore, 131 F.3d 399, 406 (4th Cir. 1997) (citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)). The federal court does not weigh the evidence or consider the credibility of witnesses. United States v. Arrington, 719 F.2d 701, 704 (4th Cir. 1983).

         In addressing the sufficiency of the evidence, the Court of Appeals of Virginia found that:

“Because sexual offenses are typically clandestine in nature, seldom involving witnesses to the offense except the perpetrator and the victim, a requirement of corroboration would result in most sex offenses going unpunished. Consequently, rape and attempted rape convictions may be sustained solely upon the testimony of the victim.” Garland v. Commonwealth, 8 Va.App. 189, 191, 379 S.E.2d 146, 147 (1989).
“Determining the credibility of witnesses who give conflicting accounts is within the exclusive province of the [finder of fact], which has the unique opportunity to observe the demeanor of the witnesses as they testify.” Lea v. Commonwealth, 16 Va.App. 300, 304, 429 S.E.2d 477, 479 (1993). We will not disturb the factual finding of a jury on issues of witness credibility unless we “‘find[] that [the] . . . testimony [accepted by the jury] was inherently incredible, or so contrary to human experience as to render it unworthy of belief.'” Moyer v. Commonwealth, 33 Va.App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc) (quoting Robertson v. Commonwealth, 12 Va.App. 854, 858, 406 S.E.2d 417, 419 (1991) (internal quotation marks omitted). For testimony to be inherently incredible as a matter of law, “it ‘must be either so manifestly false that reasonable men ought not to believe it, or it must be shown to be false by ...

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