United States District Court, E.D. Virginia, Alexandria Division
Ellis. III United States District Judge
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.
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 and 18.2-370.1,
(ii) using a communications system to propose a sex act to a
minor, in violation of Virginia Code § 18.2-374.3,
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.
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.
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).
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
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.
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.
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”-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
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
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.
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.
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
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 ...