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Billups v. Clarke

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

September 30, 2016

DON BILLUPS, Petitioner,
HAROLD CLARKE, Respondent.


          Elizabeth K. Dillon United States District Judge

         Petitioner Don Billups brings this 28 U.S.C. § 2254 habeas petition (Dkt. No. 1) challenging his state convictions for sixteen offenses involving seven different child victims, for which he received two life sentences plus seventy-five years' imprisonment. Respondent filed a motion to dismiss (Dkt. No. 9), and Billups has filed an amended response. (Dkt. No. 21.) Also pending before the court are two additional motions filed by Billups, both of which seek to insert several documents into the record. (Dkt. Nos. 22, 24.) The court will grant both of those motions, and in reviewing Billups's petition, the court has considered the additional documents.

         In his petition, Billups asserts a number of claims of ineffective assistance of counsel, nearly all of which he raised in his state habeas petition, and most of which were rejected on their merits by the Supreme Court of Virginia. The court concludes that the Supreme Court of Virginia's decision on the claims it addressed on their merits was neither contrary to, nor an unreasonable application of, clearly established federal law and further concludes that the decision was not based on an unreasonable determination of the facts. The two remaining claims, which were not included in his original petition and which the state court denied leave to amend, are procedurally defaulted, and Billups has not shown excuse for that default. For these reasons, discussed in more detail below, the court will grant respondent's motion to dismiss Billups's petition. The court will also deny Billups a certificate of appealability.

         I. BACKGROUND

         On November 15, 2012, after a three-day jury trial, the Alleghany County Circuit Court convicted Billups of all the offenses on which he was tried-sixteen offenses against seven different victims, all of whom were minors at the time of the offenses. Specifically, he was convicted of indecent liberties with J.S., L.C., A.H., O.F., and L.T., and indecent liberties on two separate occasions with K.T., all in violation of Virginia Code § 18.2-370.1; attempted indecent liberties with S.N., in violation of Code § 18.2-370 and § 18.2-26; aggravated sexual battery of A.H., O.F., and L.T., in violation of Code § 18.2-67.3; object sexual penetration of AH. and O.F., in violation of Code § 18.2-67.2; assault and battery of S.N., in violation of Code § 18.2-57; and two counts of sexual battery of K.T., in violation of Code § 18.2-67.4.

         All seven of the victims testified at trial, as did other witnesses who corroborated certain portions of the victims' testimony. Each victim testified about at least one incident between her and Billups, all of which took place between 2002 and 2012. For example, the jury heard evidence from the victims that Billups attempted to get one young girl to kiss him; that, while supposedly teaching a couple of victims to swing a golf club, he stood behind each one and rubbed his erect penis against her buttocks; that he fondled some victims in the genital area, over their clothing; and that he gave a massage to one victim. Two victims testified to even more egregious conduct: Billups had placed his hand up inside their underwear and inserted his finger in their vaginas. All of the Commonwealth's witnesses were cross-examined by Billups's attorneys, with the exception of one witness who offered limited testimony about one victim's earlier report of Billups's misconduct. Billups's attorneys also called witnesses in his defense, including his daughters and wife, and Billups elected to testify, as well. (See generally Trial Transcript, Dkt. No. 19-3 at 23 through Dkt. No. 19-6 at 130.)

         After he was convicted and sentenced, Billups appealed his convictions to the Court of Appeals of Virginia, arguing two assignments of error. First, he contended that the trial court erred in denying his motion for a bill of particulars because the indictments were insufficiently detailed to allow him to prepare a defense. Second, he made a general insufficiency of the evidence claim, arguing that the district court erred in denying his motions to strike. (Dkt. No. 13 at 34.) The Court of Appeals denied his appeal on September 26, 2013. (Id. at 16-18.) The Supreme Court of Virginia subsequently refused his petition to appeal. (Id. at 22.)

         Billups then filed a pro se habeas petition in the Supreme Court of Virginia, attacking the validity of his convictions. He raised essentially the same claims he has raised here (Dkt. No. 19-1 at 7), and the Supreme Court denied his petition. His federal petition lists the following three multi-faceted claims, which he elaborates on by incorporating portions of his state habeas petition by reference:

1. He was denied the effective assistance of counsel when his trial counsel failed to present certain evidence. Specifically, he claims counsel should have introduced evidence that four of the victims "conspired together" to create a story against him and that all of the victims had various motives to fabricate their accusations. (Dkt. No. 1 at 5 (also referring to pages 1 to 28 of his state habeas petition, Dkt. No. 1-6).) He also asserts that counsel should have presented additional evidence that showed he was helpful to a number of the victims, that some of them had contact with him even after the alleged abuse, and other facts that he contends show he did not commit the offenses.
2. He was denied the effective assistance of counsel when counsel failed to subpoena witnesses Daylyn Tyree and Caitlyn Leity to testify that they overheard four of the victims discussing the need to "stick to the story" of the allegations against him. (Dkt. No. 1 at 6 (also referring to pages 29 to 32 of his state habeas petition).).
3. He was denied the effective assistance of counsel when counsel failed to investigate various aspects of the case. In particular, he claims counsel should have investigated: (a) whether an expert medical witness could impeach the victims and discredit A.H.'s claim of abuse by showing that there was no evidence of abuse or assault; and (b) additional defenses and allegedly exculpatory evidence. (Dkt. No. 1 at 8 (also referring to pages 33 to 50 of his state habeas petition).) In another portion of this claim, Billups alleges that he had given certain documents ("exhibits A-Z") to one of his two trial attorneys, Mr. Armstrong. He claims that the other counsel, Ms. Harris-who Billups and his wife both describe as his "lead" counsel-was not aware of all the exhibits he had provided Mr. Armstrong because Ms. Harris only returned a portion of those to him when he asked for a copy of his file to appeal.

         Although not listed as a separate ground in his federal petition, Billups argued in his state petition-and argues again here-that trial counsel's failure to maintain his file also prevented him from effectively pursuing his appeal and his state habeas. (Dkt. No. 1-6 at 49.) That allegation was treated as a separate, fourth claim (claim d) by the state habeas court. (Dkt. No. 8-1 at 5-6.) In his response to the motion to dismiss in this court, though, Billups clarifies that this argument was not intended as a separate claim, but is a part of his failure to investigate claim.[1] (Dkt. No. 21 at 3, 5.) All of his claims, including this last one, were considered on their merits and rejected by the state habeas court. (Dkt. No. 8-1 at 1-6.)

         After respondent had filed his motion to dismiss the state habeas petition, Billups sought leave to amend his petition to add two additional ineffective assistance claims based on counsel's failure to: (1) present mitigating evidence during the sentencing phase of the case; and (2) investigate whether an ill juror received medical attention and whether her illness affected the deliberations or her ability to serve as a juror. The Supreme Court of Virginia denied him leave to amend and thus declined to address those claims. (Dkt. No. 8-1 at 6.) Although respondent contends here that those claims have been "abandoned" and not raised before this court (Dkt. No. 11 at 4-5), Billups disagrees. He believes he adequately asserted them, by including the state court's denial of his motion to amend and the substance underlying the claims as part of his petition here, despite the fact that they were not listed on his petition as a separate claim. (Dkt. No. 21 at 3-6.) He also appears to contend that they are sub-claims to his general "failure to investigate" claim, which is listed in the petition.

         Petitioner's failure to list these claims specifically in his petition likely runs afoul of Rule 2 of the Rules Governing § 2254 proceedings, which requires a petition to "specify all the grounds for relief available to the petitioner" and which "must substantially follow" either the standard form in the rules or a local standard form.[2] The standard form used by Billups also warns that he must list all of his grounds and that, if he has more than four, he should attach additional pages.

         But the court notes that these claims were also included as part of his "additional evidence" docketed in the case (see Dkt. No. 8-4), which the respondent has conceded is "properly before this [c]ourt." (Dkt. No. 11 at 5 n.5.) Moreover, the court is aware of its duty to liberally construe/ro se filings, Haines v. Kerner, 404 U.S. 519, 520 (1972), and Billups couches those claims as part of his "failure to investigate" claim, which is referenced in the petition. Thus, the court will treat them as claims asserted in his federal petition. Even assuming they have been properly raised, however, these claims do not entitle Billups to relief.

         Respondent has filed a motion to dismiss his petition (Dkt. No. 9), and Billups has filed an amended response (Dkt. No. 21; see also Dkt. No. 23 (order explaining various responses by Billups and notifying him that his second amended response will be considered as his sole response to the motion to dismiss).) As already noted, the court has also considered other documents filed by Billups as part of his motions to supplement and his addendum. (Dkt. Nos. 8, 22, 24.)


         A. Standard of Review

         When reviewing a habeas corpus petition challenging a state conviction, this court employs a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Deyton v. Keller, 682 F.3d 340, 344-45 (4th Cir. 2012) (citation omitted). Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal habeas court may only grant habeas relief "with respect to any claim that was adjudicated on the merits" in state court if the state court's decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or (2) "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)(1)-(2); Deyton, 682 F.3d at 345 (quoting same).

         A state court decision is "contrary to" the Supreme Court's clearly established precedent if (1) the state court "arrives at a conclusion opposite to that reached by [the Supreme Court] as a matter of law" or (2) the state court "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that ...

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