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Clark v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

February 28, 2017

BRANDON JAMES CLARK, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski United States District Judge

         Brandon James Clark, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Circuit Court of the City of Waynesboro. Respondent filed a motion to dismiss Clark's § 2254 petition, and Clark responded, making the matter ripe for disposition. After review of the record, the court concludes that Clark's claim has no merit, requiring the motion to dismiss to be granted.

         I. Background

         Clark was convicted of one count of burglary with a weapon, two counts of aggravated malicious wounding, two counts of use of a firearm while committing a felony, and one count of street gang participation involving a juvenile. After Clark's direct appeal and state habeas petition were unsuccessful, he filed the present federal habeas petition pursuant to 28 U.S.C. § 2241. The district court initially denied relief because Clark had failed to exhaust state remedies, and the court also denied Clark's motion for reconsideration. However, the Fourth Circuit Court of Appeals remanded for further proceedings. The facts and procedural history pertinent to Clark's habeas claim are as follows.

         On the night of November 25, 2006, Clark went to April Turner's apartment at 216 South Winchester Avenue, in Waynesboro. Five people were inside the apartment: Turner, Turner's five-year-old daughter, a juvenile named J.P., fourteen-year-old K.W., and eighteen-year-old James Gordon O'Brien (also known as "O.B." or "Crab, " the slang term for a Crips gang member). Clark and fellow Bloods gang members S.W., Rashame Washington, and Jordan Strickland approached the apartment with red bandanas covering their faces.[1] S.W. knocked on Turner's door, but Turner refused to let them in, stating, "Do not come in. Don't bring this to my house." H'rg Tr. vol. 2, 5.

         S.W. pushed Turner backwards and S.W., Washington, Strickland, and Clark broke into the apartment. S.W. stood over Turner while Washington, Strickland, and Clark proceeded to a bedroom where they shot K.W. once in the leg, and also shot O'Brien four or five times. The bullet that struck K.W. lodged in her thigh and she had a significant scar. O'Brien lost internal organs and had spinal cord damage, with a bullet remaining lodged next to his spine. He also had a colostomy and an ileostomy.

         Clark fled the scene, and was later arrested in Newport News on December 1, 2006. Upon arrest, police found a .32-caliber handgun in Clark's possession, and the bullets in that handgun matched a shell found in Turner's parking lot. Clark confessed that he shot at O'Brien, and stated that he wished O'Brien had died.

         On May 2, 2007, Clark entered an Alford guilty plea[2] in the Circuit Court of the City of Waynesboro, and was convicted of burglary with a weapon, two counts of aggravated malicious wounding, two counts of use of a firearm in commission of a felony, and street gang participation involving a juvenile.

         At his sentencing hearing, Clark testified that he had remained outside during the shooting, and as S.W., Washington, and Strickland ran from the scene, one of them had given him the 32-caliber weapon. He heard gunshots from the parking lot, but did not know who had fired them. Also, Clark claimed that he had fired the shell found at the scene a day prior to the shootings. Clark claimed that his earlier confessions were lies to protect the younger participants. The judge sentenced Clark to an active term of forty-three years in prison.[3]

         Clark's codefendants, Washington and Strickland, pleaded guilty and were convicted of the same six offenses as Clark. Washington and Strickland did not enter Alford pleas.

         Clark pursued direct appeals, arguing that the trial court erred in not further reducing his sentence due to mitigation evidence produced at sentencing. Clark claimed that the mitigation evidence demonstrated that he was actually innocent or only minimally involved in the crimes. The Court of Appeals of Virginia affirmed his conviction, holding that "there is substantial evidence against the defendant in this matter . . . sufficient for a finding of guilt on all six charges, " and that the sentence imposed was within the range prescribed by law. Clark v. Commonwealth. 2008 Va.App. LEXIS 234, 2008 WL 2019561, at *1 n.4 (May 13, 2008). The Supreme Court of Virginia refused review. Clark timely filed a petition for a writ of habeas corpus in the Circuit Court of the City of Waynesboro, raising five claims.[4] On Oct 7, 2009, the circuit court denied habeas relief, and Clark did not pursue a habeas appeal to the Supreme Court of Virginia.

         On January 31, 2014, Clark filed a petition for a writ of habeas corpus in federal district court. His § 2254 petition asserts a single Sixth Amendment claim: Trial counsel rendered ineffective assistance by advising and allowing Clark to enter into an Alford guilty plea when counsel did not believe Clark was guilty of the crimes he was advising him to plead guilty to, and which Clark did not commit. In support of his petition, Clark submits a 2011 unexecuted affidavit and several letters from one of the victims, O'Brien, a letter from a prisoner named "Yella Boy, " and also a 2013 affidavit from codefendant Washington. The materials state that Clark did not shoot O'Brien, and that Clark was outside in the street when the shooting occurred.

         Clark has not raised this claim in any Virginia court; thus, his claim is procedurally barred by Coleman v. Thompson. 501 U.S. 722 (1991). Also, his claim is time-barred under Va. Code § 8.01-654(A)(2) and 28 U.S.C. § 2244(d). Clark argues that under Schlup v. Delo. 513 U.S. 298 (1995), and McQuiggin v. Perkins. 133 S.Ct. 1924 (2013), his actual innocence of die crimes excuses the procedural default and time-bar under any statute of limitations. The district court initially dismissed Clark's federal habeas petition for failure to exhaust state remedies. Clark v. Clarke. No. 7:14-cv-00042 (W.D. Va. Feb. 10, 2014) (ECF No. 3). Clark sought reconsideration of the dismissal, which was denied. Clark v. Clarke. No. 7:14-cv-00042 (W.D. Va. Apr. 10, 2014) (ECF No. 7).

         Clark appealed to die Fourth Circuit Court of Appeals, and the Court of Appeals reversed the dismissal and remanded to the district court, directing the court to treat Clark's claim as exhausted and defaulted under Sparrow v. Director. Dep't of Corrections, 439 F.Supp.2d 584 (E.D. Va. 2006). The Court of Appeals held that the district court should have determined (1) whether Clark's actual innocence claim excuses the procedural default and untimeliness of his § 2254 petition, and (2) if Clark's actual innocence does excuse his doubly-defaulted petition, whether the underlying ineffective assistance of counsel claim has merit. Clark v. Clarke. No. 14-6615 (4th Cir. May 11, 2016) (ECF No. 13).

         II. Actual Innocence

         A. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) severely restricts federal habeas relief afforded to state prisoners. "Generally, a federal court may not consider claims that a petitioner failed to raise at the time and in the manner required under state law." Teleguz v. Zook. 806 F.3d 803, 807 (4th Cir. 2015) (citation omitted). "[An] exception is made for cases in which a compelling showing of actual innocence enables a federal court to consider the merits of a petitioner's otherwise defaulted claims." Id. For a petitioner to claim actual innocence, "[new] evidence must establish sufficient doubt about [a petitioner's] guilt to justify the conclusion that his [incarceration] would be a miscarriage of justice unless his conviction was the product of a fair trial." Schlup, 513 U.S. at 316 (emphasis in original). Actual innocence "does not by itself provide a basis for relief. Instead, [the petitioner's] claim for relief depends critically on the validity of his [procedurally defaulted claim]." Schlup. 513 U.S. at 315 (citing Herrera v. Collins. 506 U.S. 390, 403 (1993)).

         "[H]abeas corpus petitions that advance a substantial claim of actual innocence are extremely rare." Id. at 322. To state such a claim, the petitioner must satisfy a "rigorous" burden by "supporting] his allegations of constitutional error with new reliable evidence- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Id. at 324. Further, "[h]aving been convicted . . . [petitioner] no longer has the benefit of the presumption of innocence. To the contrary, [petitioner] comes before the habeas court with a strong-and in the vast majority of the cases conclusive-presumption of guilt." Id. at 326 n.42.

         The district court must examine all evidence and make a holistic threshold determination about the petitioner's claim of innocence separate from its inquiry into the fairness of his trial. Teleguz v. Pearson. 689 F.3d 322, 330 (4th Or. 2012). The district court may consider: the nature of evidence, House v. Bell. 547 U.S. 518, 537 (2006), the timing of submissions, McQuiggin. 133 S.Ct. at 1928, the credibility of witnesses, House, 547 U.S. at 537, 552, and the probative force of the newly supplemented record. House, 547 U.S. at 538; Sharpe v. Bell. 593 F.3d 372, 381 (4th Or. 2010). After performing this analysis, the district court must determine whether "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U.S. at 328.

         In addition, the reviewing court has significant latitude to make credibility assessments in actual innocence cases. See, e.g., United States v. Connolly. 504 F.3d 206, 213-14 (1st Cir. 2007) (The appellant "place[d] most of his emphasis upon [a co-felon's] jailhouse recantation . . . however, [the co-felon's] testimony did not occur in a vacuum . . . much of his testimony received substantial circumstantial corroboration."); United States v. Gonzalez-Gonzale2. 258 F.3d 16, 22 (1st Cir. 2001) (holding evidence of perjury is weak when it depended on the credibility of two convicted felons); see also McCray v. Vasbinder, 499 F.3d 568, 574 (6th Cir. 2007) (A witness identified the appellant as the murderer at trial, but stated that he could not identify the perpetrator at a later evidentiary hearing. "Reasonable jurors no doubt could question the credibility of this about face from another inmate and rationally could discount his testimony as nothing more than an attempt to keep from being 'pegged as a rat.'"). A district court may have greater difficulty determining the credibility of evidence on a "cold record, " but the Fourth Circuit Court of Appeals has allowed the district court to conclude that the evidence is inadequate or unreliable enough to dismiss the petition without an evidentiary hearing. See Teleguz, 689 F.3d at 331.

         B. ...


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