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Linnon v. Clarke

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

January 30, 2017

Craig Michael Linnon, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          T. S. Ellis. III United States District Judge

         Craig Michael Linnon, 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 in the Circuit Court of Hanover County. Respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. After receiving additional time, petitioner filed a response in which he moves for summary judgment to be entered in his favor. For the reasons that follow, plaintiff's motion must be denied, respondent's Motion to Dismiss must be granted, and the petition must be dismissed with prejudice.

         I.

         The record reflects the following facts and proceedings. Petitioner is incarcerated pursuant to a final judgment of the Circuit Court of Hanover County, entered November 3, 2011. Dkt. No.1. Petitioner was convicted by a jury of (i) conspiring to take indecent liberties with a minor, in violation of Virginia Code §§ 18.2-26[1] and 18.2-370.1, [2] (ii) using a communications system to propose a sex act to a minor, in violation of Virginia Code § 18.2-374.3, [3] and four counts of (iii) taking indecent liberties with a minor in a custodial or supervisory role, in violation of Virginia Code § 18.2-370.1. Id. Petitioner was sentenced to eleven years imprisonment. Id.

         During voir dire of the venire for petitioner's trial, the prosecutor asked the jury panel if they thought “it should be legal for an adult in their 40s to have sexual contact with children, ” to which all of the panel members answered “no.” Id. at Ex. 15. In the course of petitioner's trial, one of the prosecution's witnesses, Tyler Scott, was asked on cross examination whether the prosecutor had told Scott that the prosecutors were “waiting to see how [Scott] testified before they made any deals for [Scott].” Id. Scott answered this question “no.” Id. One week after testifying in petitioner's trial, Scott entered a plea of guilty for unrelated charges and, during his plea hearing, the prosecution stated that one of Scott's charges was being amended “based upon [Scott's] cooperation in another case.” Id. at Ex. 23.

         Petitioner pursued a direct appeal to the Court of Appeals of Virginia, where the petition for appeal was denied. Record No. 2418-11-2. Petitioner then appealed three of his convictions of taking indecent liberties with a minor in a custodial or supervisory role to the Supreme Court of Virginia, and these convictions were affirmed. Linnon v. Commonwealth, 287 Va. 92 (2014).

         The facts, as stated by the Supreme Court of Virginia on direct appeal with respect to three of petitioner's convictions of taking indecent liberties with a minor in a custodial or supervisory role, are as follows:

Craig Linnon taught a building trades class at a vocational school. He also was assigned the responsibility of supervising students in the cafeteria during lunch one day each week and on the sidewalk outside his classroom before, after, and between classes each day. His wife, Angela, was the school nurse. She also occasionally monitored a cosmetology class when the teacher stepped out. A.G. was a 16-year-old female student in the cosmetology class. A.G. was not one of Craig's students but they saw each other every day when he monitored the sidewalk near the bus loading zone.
In December 2009, A.G.'s cosmetology class had a party on school grounds to celebrate the end of the semester. At the party, Angela invited A.G. and A.G.'s female friend to the Linnons' home that night. The two girls accepted the invitation and the Linnons picked them up that evening. At their home, the Linnons supplied A.G. and her friend with alcohol in exchange for marijuana. Craig told A.G. that Angela had sexual fantasies about her and that he had a video of Angela fellating one of his male students. A.G. and her friend were disturbed by the sexual content of the conversation and decided to leave. Craig drove them to the friend's home.
The following night, the Linnons again invited A.G. to their home. A.G. returned in the company of Jared Todd, her ex-boyfriend, and Tyler Scott, Todd's friend. Both Todd and Scott were 18 years old. Todd was one of Craig's students. The Linnons and the teenagers drank alcohol; the Linnons, Scott, and A.G. also smoked marijuana.
The group began playing a sex-themed version of Charades in the living room. The game devolved into a sexual orgy when Angela actually fellated Todd and Scott rather than merely miming. During the activities that followed, Craig inserted his penis into A.G.'s mouth. Craig also inserted his fingers into A.G.'s vagina and anus. He also implored her to have sex with Angela.
Sometime thereafter, Todd and Scott went to the bathroom and decided to leave the Linnons' home. When A.G. realized Todd and Scott had left the living room, she found her clothes and got dressed. When Todd and Scott returned from the bathroom, they got dressed and announced that they were leaving. The three teenagers departed as the Linnons continued having sex on the living room floor.
Craig was subsequently indicted on three counts of taking indecent liberties with a minor by a person in a custodial or supervisory relationship, in violation of Code § 18.2-370.1(A). He and Angela were tried jointly but were represented by separate counsel. … Angela objected to three of the Commonwealth's proposed jury instructions and Craig objected to a fourth. The court also rejected two jury instructions Craig proposed. The jury thereafter convicted Craig on all three counts and he was sentenced to a term of eleven years' active incarceration.

Id. at 96-97.

         The facts relating to petitioner's remaining convictions that were not addressed in the Supreme Court of Virginia's opinion are as follows. In November 2009, another minor, T.D., was a student in petitioner's class. March 29, 2011 Tr. at 173. Petitioner sent a text message to T.D. in November 2009 asking if T.D. “would let [his] wife give [T.D.] a blow job.” Id. at 180. T.D. answered in the affirmative and when he arrived at the school later that day petitioner took T.D. to a storage closet where petitioner's wife was waiting. Id. at 181-86. Petitioner asked T.D. if he could videotape his interaction with petitioner's wife. Id. at 186. Petitioner then left the storage closet and petitioner's wife performed oral sex on T.D. Id. at 187-88.

         Before the Supreme Court of Virginia issued its decision affirming three of petitioner's convictions of taking indecent liberties with a minor in a custodial or supervisory role on direct appeal, petitioner filed a Motion to Vacate Convictions for Lack of Subject Matter jurisdiction in which he argued that his convictions should be vacated based on the Fourth Circuit's decision in MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013), cert. denied, 134 S.Ct. 200 (2013), holding unconstitutional Virginia's anti-sodomy statute, Va. Code § 18.2-361(A). Dkt. No. 1 at Ex. 6. The Supreme Court of Virginia correctly denied this motion. Id. at Ex. 7. Contrary to petitioner's contention, the anti-sodomy statute-which, on its face, proscribed sodomy among consenting adults “without limits” and failed “remotely [to] suggest that the regulation sexual relations between adults and children had anything to do with its enactment”[4]-did not provide the offenses of conviction here. Rather, petitioner's convictions were under Va. Code §§ 18.2-370.1 and 18.2-370.1 (conspiring to take indecent liberties with a minor), Va. Code § 18.2-374.3 (using a communications system to propose a sext act to a minor), and Va. Code § 18.2-370.1 (taking indecent liberties with a minor in a custodial or supervisory role). Importantly. these statutes refer to conduct with respect to children, and any reference to the anti-sodomy statute describes conduct that would be illegal if directed at a child. Put another way, defendant was convicted for conduct he directed at a child, and these convictions are not unconstitutional under the Fourth Circuit's decision in MacDonald.

         The subsequent history of petitioner's arguments regarding his convictions makes this point clear. After pursuing his direct appeal, petitioner filed a timely petition for a writ of habeas corpus in the Circuit Court of Hanover County on October 16, 2014. In his state habeas petition, petitioner asserted the following claims.

Claim One: that the trial court lacked jurisdiction over petitioner's convictions.
Claim Two: that petitioner was denied effective assistance of counsel because of trial counsel's failure to a. object to erroneous jury instructions.
b. object to prosecutorial misconduct during voir dire.
c. conduct a reasonable investigation.
Claim Three: that the Commonwealth committed prosecutorial misconduct by failing to disclose a plea agreement with one of the witnesses.

         Case No. CL14-2657-00. By Order dated February 23, 2015, the state habeas court denied and dismissed Claims One and Two on the merits and Claim Three on procedural grounds. Id.

         Specifically, the state habeas court found Claim Three to be defaulted because petitioner could have, but failed to, assert this claim at trial or on direct appeal. Id. (citing Slayton v. Parrigan, 215 Va. 27, 29 (1974), cert. denied, 419 U.S. 1108 (1975)). Petitioner appealed from the state habeas court's order denying relief. By order dated January 5, 2016, the Supreme Court of Virginia denied petitioner's appeal. Record No. 150744. Because the Supreme Court of Virginia did not issue an opinion in this regard, it is appropriate to impute to the Supreme Court of Virginia the circuit court's February 23, 2015 Order, as it was the last reasoned state court decision on petitioner's claims. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991).

On May 26, 2016, petitioner filed the instant federal petition, wherein he challenges his convictions on the following grounds.
Claim One: that petitioner's right to Due Process under the Fourteenth Amendment was violated because four of his convictions were based on an unconstitutional statute, Virginia Code § 18.2-361(A).
Claim Two: that petitioner's trial counsel was ineffective because (a) petitioner's “entire venire had preconceived fixed opinions making them biased [and] partial and trial counsel failed to take corrective action[; (b)] trial counsel failed to take corrective action by objecting to erroneous jury instructions[; and (c)] trial counsel failed to contact and present exculpatory witness testimony based on an incomplete or non-existent investigation.” Claim Three: that “[t]he Commonwealth deprived [petitioner's] right to Due Process by concealing a deal made with a key witness in ...

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