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Dillon v. Clarke

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

February 15, 2017

Thomas Randall Dillon, Petitioner,
v.
Harold Clarke, Respondent.

MEMORANDUM OPINION

          Liam O'Grady United States District Judge.

         Thomas Randall Dillon, 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 Hanover County. Before this Court is the respondent's Motion to Dismiss the petition.

         I. Background

         On March 21, 2014, petitioner was convicted following a jury trial of one count each of abduction by force and assault. Case No. CR1300019-00 and -01. The facts underlying the charges were explained by the Court of Appeals of Virginia as follow:

On December 15, 2012, [Dawn] Pitts went to Henrico County to pick up appellant from Stuart Chisholm's home. Appellant had called Pitts and told her he was drunk and could not drive his moped. He asked Pitts to drive him back to his motel room at the Apple Garden Inn in Hanover County. When Pitts arrived at Chisholm's home around 9:30 or 9:35 p.m., appellant appeared intoxicated and was consuming more alcohol. He did not agree to leave with Pitts until after midnight. At about 3:15 a.m., Pitts picked up appellant from another location and began driving to the Apple Garden Inn. During this drive, appellant became verbally and physically abusive. Appellant struck Pitts in the face and head with his fists.
When they reached the motel, appellant argued with Pitts further and would not get out of the car. Appellant tried to convince Pitts to take him to the hospital or to Pitts' home, but she refused. Appellant took Pitts' car keys, got out of the car, and went into his motel room. Pitts went to the room to retrieve her keys. Appellant had her come inside to talk. Appellant began groping Pitts and trying to engage her in sexual intercourse. When she refused, appellant told her she was not going anywhere but would spend the night with him. He then demanded she take him to the hospital or her home. When she refused, he did not allow her to leave. Over the course of about three hours, Pitts repeatedly tried to leave the room, but appellant would not let her go or give her the keys. During this time, appellant threw her onto the bed, hit her, and kicked her in the stomach. At one time, he got on top of Pitts and choked her. Another time, appellant grabbed a knife, held it to Pitts' face, and threatened to 'gut' her and himself. Finally, Pitts said she would take appellant to stay at her house. While appellant was gathering some clothes, Pitts fled from the room.

Dillon v. Commonwealth. R. No. 0771-14-2 (Va. Ct. App. Feb. 5, 2015), slip op. at 4-5.[1] Dillon was sentenced to serve 10 years in prison with 7 years suspended for the abduction by force, and 12 months with 6 months suspended for the assault.

         In addition, petitioner earlier had been convicted in Henrico County of two counts of carnally knowing a child of thirteen years of age and one count of contributing to the delinquency of a minor. Case Nos. CR10001361-00 and -01, CR10001362-00. He was sentenced to an aggregate of 21 years incarceration, with 17 years and 14 months suspended. On March 21, 2014, the court revoked the entire period of suspended time based upon the abduction and assault convictions, and re-suspended 16 years and 8 months of the sentence.

         Dillon took a direct appeal of all of the foregoing convictions, raising the following claims:

1. The trial court abused its discretion by ignoring the Brickhouse factors and permitting Pitts to testify again, thereby denying his constitutional right to a fair trial.
2. Brady v. Maryland requires reversal because the police report and Pitts' written statement to the police contained exculpatory evidence and had impeachment value but were not provided to the defense.
3. The trial court erred by overruling his objection to amendment of the indictment because it was a fatal variance.
4. The evidence to sustain the abduction conviction was insufficient as a matter of law.
5. The victim impact statement violated the Virginia Code and his constitutional rights to due process and a fair trial.
6. Because he was wrongfully convicted of abduction and assault, the probation violation convictions cannot stand.

         A judge of the Court of Appeals denied Dillon's petition for appeal on February 5, 2015, and a three-judge panel refused further review on April 23, 2015. Resp. Ex. 1. Petitioner sought review by the Supreme Court of Virginia, but his petition was refused on December 23, 2015. Dillon v. Commonwealth. R. No. 150661 (Va. Dec. 23, 2015); Resp. Ex. B.

         On April 4, 2016, Dillon turned to the federal forum and timely filed this application for a writ of habeas corpus pursuant to §2254, [2] essentially reiterating the claims that were raised direct appeal, as follow:

1. The trial court abused its discretion in permitting Dawn Pitts to testify at petitioner's second trial, in violation of his constitutional rights to due process and a fair trial.
2. The prosecutor withheld exculpatory evidence in the form of written statements by Dawn Pitts, in violation of Brady ...

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