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Herrington v. Clarke

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

February 10, 2017

Donald Herrington, Petitioner,
v.
Harold Clarke, Respondent.

          MEMORANDUM OPINION

          Anthony J. Trenga United States District Judge.

         Donald Herrington, 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 convictions entered in the Circuit Court of Stafford County.[1] Before this Court is the respondent's Motion to Dismiss the petition.

         I. Background

         On August 1, 2012, a jury found petitioner guilty of three counts of attempting to obtain money by false pretense, four counts of perjury, two counts of failing to file a tax return, and three counts of filing a false income tax return. After reviewing a presentence report and hearing evidence, the trial court imposed an active sentence of six years and 24 months incarceration. The court subsequently suspended imposition of the sentence and appointed counsel to aid petitioner with post-trial proceedings and direct appeal. On December 17, 2012, after hearing motions, the court executed imposition of the sentence.

         On direct appeal, counsel filed a brief pursuant to Anders v. California. 386 U.S. 738 (1967), along with a motion to withdraw. The sole arguable error cited was that the trial court abused its discretion by sentencing petitioner to six years and 24 months incarceration given the nature of his crimes. When petitioner was provided with the opportunity to raise any claims he might choose, he filed a "list of errors" setting out 134 instances of alleged irregularities. The appellate court rejected the contention that the sentence constituted an abuse of discretion, noting that the sentences imposed were within the ranges set by the legislature and that no evidence had been presented to indicate that they were "so grossly disproportionate as to shock the conscience." Herrington v. Commonwealth. R. No. 1945-12-4 (Va. Ct. App. Nov. 5, 2013), slip op. at 2, quoting Wolkind v. Selph. 473 F.Supp. 675, 679 (E.D. Va. 1979), affd, 649 F.2d 865 (4th Cir. 1981). As to petitioner's "list of errors, " the court determined:

In his supplemental petition for appeal, appellant alleges 134 instances of error committed by the trial court. Deciphering appellant's 'list of errors' requires reference to a system of abbreviations of appellant's own creation. The allegations of error are unsupported by legal argument or citation to authority except by cross-reference to appellant's compilation, in a separate section of the petition, of various statements of law. [FN 1]
[1] Many of appellant's allegations do not contain an exact citation to the record or particular transcript where appellant preserved his objection in the trial court. Examination of the citations to the record that appellant has provided reveals that in many instances appellant raised no objection to the action of the trial court about which he complains on appeal. Consideration of these issues is thus barred by Rule 5A:18, which provides that '[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling....'
Rule 5A: 12(c)(5) mandates that the petition for appeal include 'principles of law and the authorities' with respect to each assignment of error. The principles of law and the authorities may not be 'scattered through the petition.' Rule 5A:12(c)(5).
The petition for appeal does not contain argument that sufficiently complies with Rule 5A: 12(c)(5). This Court '"may... treat a question presented as waived"' when we determine that "a party's 'failure to strictly adhere to the requirements' of the rule regarding legal argument is "significant." Parks v. Parks. 52 Va.App. 663, 664, 666 S.E.2d 547, 548 (2008) (quoting Jav v. Commonwealth. 275 Va. 510, 520, 659 S.E.2d 331, 317 (2008)). In this case, we find appellant's failure to comply with Rule 5 A: 12(c)(5) is significant. As we stated in Fadness v. Fadness. 52 Va.App. 833, 851, 667 S.E.2d 857, 866 (2008), "[a]ppellate courts are not unlit rooms where [litigants] may wander blindly about, hoping to stumble upon a reversible error. If the parties believed that the circuit court erred, it was their duty to present that error to us with legal authority to support their contention." "We will not search the record for errors in order to interpret the appellant's contention and correct deficiencies in a brief." Buchanan v. Buchanan. 14 Va.App. 53, 56, 415 S.E.2d 237, 239 (1992). Thus, we consider waived the issues raised in the supplemental petition for appeal, and we do not consider them.

Herrineton v. Commonwealth. R. No. 1945-12-4, slip op. at 2-3. On January 16, 2014, the Court of Appeals denied a motion by petitioner to set aside the judgment and grant rehearing. The Supreme Court of Virginia refused his petition for a second-tier appeal on September 2, 2014, Herrineton v. Commonwealth. R. No. 140286 (Va. Sept. 2, 2014), and denied rehearing of that determination on November 6, 2014.

         On July 13, 2015, Herrington filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the same claims he makes in this federal proceeding. The petition was dismissed in a written order which will be discussed in greater detail infra. Herrington v. Clarke. R. No. 150943 (Va. Mar. 2, 2016).

         Petitioner then turned to the federal forum and timely filed the instant application for relief pursuant to §2254 on March 30, 2016, [2] raising the following claims:

1. Jury instructions were erroneous because they omitted elements of the offenses.
2. He is actually innocent of failing to file a tax return in 2009.
3. The evidence was insufficient to find that he failed to file a tax return in 2006, and the jury instructions improperly shifted the burden of proof to require him to prove his innocence.
4. He is actually innocent of perjury.
5. His waiver of the right to counsel was not valid.
6. He was the victim of prosecutorial vindictiveness in several respects when the Commonwealth withheld exculpatory evidence.
7. His rights to an impartial jury and a fair trial were violated in several respects.
8. The oral pronouncement of sentence differed from the sentencing order and was changed after he had exited the courtroom.
9. The trial court erred in refusing to consider his rjro se post-trial motions and in refusing to give counsel sufficient time to prepare and be heard on post-trial motions.
10. The trial court erred by refusing to allow him to speak before sentence was imposed.
11. He was denied his rights to present a full and fair defense, to present evidence, and to have compulsory process for obtaining witnesses.
12. He was denied access to the courts because he represented himself and was not afforded adequate access to a law library and legal materials.
13. His convictions are the result of prosecutorial vindictiveness and misconduct.
14. His convictions were obtained through fraud upon the court.
15. He received ineffective assistance during post-trial proceedings and on direct appeal.

         On May 9, 2016, respondent filed a Motion to Dismiss with a supporting brief and exhibits, and provided petitioner with the notice required by Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. (Dkt. No. 8 -11) Petitioner filed a reply captioned as a Traverse Response on May 23, 2016. (Dkt. No. 14) On June 10, 2016, he submitted a Motion to Amend/Correct Response, and the motion was granted to the extent that the arguments put forth there are deemed a supplement to the Traverse Response. (Dkt. No. 18) Accordingly, this matter is now ripe for disposition.

         II. Exhaustion

         Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the appropriate state court. 28 U.S.C. § 2254(b); Granberry v Greer. 481 U.S. 129 (1987); Rose v. Lundv, 455 U.S. 509 (1982). To comply with the exhaustion requirement, a petitioner "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, a petitioner convicted in Virginia first must have presented the same factual and legal claims raised in his federal habeas corpus application to the Supreme Court of Virginia on direct ...


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