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Day v. Director

United States District Court, E.D. Virginia, Alexandria Division

October 6, 2016

Paul Mebane Day, Petitioner,
v.
Director, Virginia Dep't of Corrections, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge.

         Paul Mebane Day, 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 conviction of grand larceny in the Circuit Court of Southampton County. Before this Court is the respondent's Motion to Dismiss this petition.

         I. Background

         Day was charged with a single count of grand larceny for his participation in the theft of a piece of farm equipment. Case No. CR13000148; Resp. Ex. A, Pet. for Appeal at 2-5. Following a joint bench trial with two codefendants on March 20, 2014, Day was found guilty, and at a hearing on August 14, 2014 he received a sentence often (10) years incarceration with seven (7) years suspended.

         Day prosecuted a direct appeal, raising the sole claim that the evidence was insufficient to sustain the conviction because it "failed to establish [he] intended to permanently deprive the owner of his property." The Court of Appeals of Virginia denied the petition for appeal on April 15, 2015. Dav v. Commonwealth. R. No. 1980-14-1 (Va. Ct. App. Apr. 15, 2015); Resp. Ex. A. On November 17, 2015, the Supreme Court of Virginia refused Day's petition for further review. Day v. Commonwealth. R. No. 150745 (Va. Nov. 17, 2015); Resp. Ex. A.

         Day filed no state habeas corpus petition. Instead, he turned to the federal forum and timely filed this application for relief pursuant to 28 U.S.C. § 2254, raising the following claims:

1. He was not in control of the truck. [Codefendant] Julian Lee Perry was the driver, and he was an innocent bystander. He did not have custody or control of the item in the trailer, and the prosecutor could not prove that he intended to permanently deprive the owner of the property. He had no knowledge that a crime was taking place.
2. He was denied due process when the trial judge denied the motion to dismiss the charge, because the Commonwealth could not prove his intent or participation in the crime, even as a lookout.
3. He had no knowledge of the crime, he was only trying to get a ride to the store. He was denied the right to testify.
4. He was denied his right to confront witnesses and to tell his side.

         Respondent filed a Motion to Dismiss and a supporting brief on June 10, 2016, and provided petitioner with the notice required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K). Petitioner responded in the form of a letter, and respondent replied. (Dkt. No. 31-32). Accordingly, this matter is now ripe for disposition.

         II. Exhaustion and Procedural Default

         Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in state court, and failure to exhaust a claim requires its dismissal by the federal court. See 28 U.S.C. § 2254(b); Rose v. Lundy. 455 U.S. 509, 515-19 (1982). 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, in Virginia, a § 2254 petitioner must first have presented the same factual and legal claims to the Supreme Court of Virginia either by way of a direct appeal, a state habeas corpus petition, or an appeal from a circuit court's denial of a state habeas petition. Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997).

         In the brief supporting the Motion to Dismiss this petition, respondent argued that claims 3 and 4, in which petitioner alleged violation of his rights to testify and to confront his accusers, are procedurally defaulted from federal review because they have not been exhausted before the Supreme Court of Virginia and would be procedurally barred under state law if petitioner were to attempt to exhaust them now. Baker v. Corcoran,220 F.3d 276, 288 (4th Cir. 2000); Slayton v. Parrigan,215 Va. 27, 205 S.E.2d 680 (1974), cert, denied.419 U.S. 1108 (1975). Respondent noted, however, that the claims could receive ...


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