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Brown v. Clarke

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

December 20, 2016

Kevin Brown, Petitioner,
v.
Harold Clarke, Respondent.

          MEMORANDUM OPINION

         Kevin Brown, 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 several theft offenses in the Circuit Court of Stafford County. Before this Court is the respondent's Motion to Dismiss the petition, as well as petitioner's Motion for Summary Judgment.

         I. Background

         On December 22, 2008, petitioner was convicted following a jury trial of one count each of conspiracy to commit larceny, larceny with intent to sell or distribute, felony shoplifting/concealment, and felony petit larceny. He received an aggregate sentence of forty-four (44) years incarceration with twenty-four (24) years suspended, for a total active sentence of twenty (20) years.

         On direct appeal, counsel for petitioner moved for leave to withdraw pursuant to Anders v. California. 386 U.S. 738 (1967), and suggested as arguable support for the appeal that the trial court erred when it imposed an active sentence. In his pro se supplemental petition for appeal, petitioner added claims that the trial court erred when it allowed an unsigned pawn slip into evidence and that the evidence was insufficient to support the convictions. The Court of Appeals denied the petition for appeal and granted counsel's motion to withdraw. Brown v. Commonwealth. R. No. 0050-09-4 (Va. Ct. App. Oct. 21, 2009). On November 30, 2010, the Supreme Court of Virginia refused a petition for appeal. Brown v. Commonwealth. R. No. 100887 (Va. Nov. 30, 2010).

         On January 17, 2011, petitioner filed a pro se petition for a state writ of habeas corpus in the Circuit Court of Stafford County, raising the following claims:

1. He received ineffective assistance of counsel where counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
2. His rights to due process and a fair trial were violated when the trial court admitted testimony about alleged unrelated bad acts.
3. The conviction of larceny with the intent to sell or distribute is void where the record fails to show that the grand jury returned an indictment for that offense.
4. The trial court erred in failing to disqualify a juror who was employed by the establishment that was the victim of the crime.
5. The trial court violated his rights to due process and a fair trial when it allowed the introduction of petitioner's prior sentences.
6. His convictions of shoplifting/concealment and petit larceny, third or subsequent offense violated the double jeopardy prohibition.

         Subsequently, counsel for petitioner entered the case, and attempted to amend the petition to add several new claims, among which was the argument that habeas corpus relief was warranted because the jury had not been instructed consistent with Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000) that parole had been abolished in Virginia. The Motion for Leave to Amend was denied in an interlocutory letter opinion on February 14, 2014, and the circuit court dismissed the petition in its entirety on November 10, 2014. Brown v. Warden. Case No. CL11 -62. Petitioner appealed that result, and the Supreme Court of Virginia dismissed and denied the appeal on September 4, 2015. Brown v. Clarke. R. No. 150073 (Va. Sept. 4, 2015).

         Petitioner timely filed the instant federal petition on September 18, 2015, raising the following claims:

1. His rights to due process and a fair trial were violated when the trial court admitted testimony about ...

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