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Pulley v. Clarke

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

March 21, 2017

Jerome Pulley, Petitioner,
v.
Harold Clarke, Respondent.

          MEMORANDUM OPINION

          Liam O'Grady, Judge

         Jerome Pulley, 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 entered in the Circuit Court for Prince William County. Respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Dkt. Nos. 6-8. Petitioner filed a Response to Respondent's Brief in Support of Rule 5 Answer and Motion to Dismiss. Dkt. No. 10. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.

         I. Background

         Petitioner is detained pursuant to a final judgment of the Circuit Court for Prince William County, entered September 18, 2014. Record No. 151915. Pursuant to a bench trial, petitioner was convicted of four counts of aggravated sexual battery in violation of Virginia Code § 18.2-67.3, two counts of indecent liberty in violation of Virginia Code § 18.2-370.1, two counts of inanimate object penetration in violation of Virginia Code § 18.2-67.2, and two counts of forcible sodomy in violation of Virginia Code § 18.2-67.1. Id. He was sentenced to three hundred and ninety years imprisonment, with two hundred and ten years suspended. Id.

         After petitioner was convicted, he moved for the appointment of different counsel for appeal. Id. The trial court denied petitioner's motion, and trial counsel, Robert Gregory, was assigned as court appointed appellate counsel. Id. Petitioner pursued a direct appeal to the Court of Appeals of Virginia where Gregory filed a brief and a motion to withdraw as counsel pursuant to Anders v. California. 386 U.S. 738 (1967) and Akbar v. Commonwealth. 7 Va.App. 631 (1989). Record No. 1842-14-4. In the brief, Gregory listed "areas in the record that might arguably support the instant petition for appeal." Id. Gregory also filed several motions for an extension of time for petitioner to file a pro se supplemental petition for appeal, each of which was granted by the Court of Appeals of Virginia. Id. Ultimately, petitioner was granted until June 15, 2015, to file his pro se supplemental petition for appeal. Id. Prior to June 15, 2015, petitioner retained attorney John Sheldon to represent him on appeal. Record No. 151915. Gregory gave a copy of petitioner's casefile and transcripts to Sheldon; however, Sheldon stopped representing petitioner when petitioner was unable to pay the fees, and petitioner never filed a supplemental pro se petition for appeal in the Court of Appeals of Virginia. Id. By Order dated August 19, 2015, the petition for appeal was denied and Gregory's motion to withdraw was granted. Id.

         Petitioner did not file a direct appeal to the Supreme Court of Virginia. On November 4, 2015, petitioner sent a letter to Gregory requesting a copy of his casefile and transcripts. Record No. 151915. On November 15, 2015, Gregory responded to petitioner stating that he would send the documents requested, and that he had already sent these documents to "attorney Sheldon at his and [petitioner's] request." Id. Sheldon never noted his appearance in petitioner's appeal in the Court of Appeals of Virginia.

         After pursuing his direct appeal, petitioner timely filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. Petitioner asserted the following claims in his state habeas petition.

• Two claims that trial counsel was ineffective due to conflicts of interest.
• The trial court erred in denying petitioner's motion for new trial counsel.
• The trial court erred in denying petitioner's motion for new "conflict-free" appellate counsel.
• Petitioner was denied effective assistance of counsel when Gregory failed to provide him with his casefile and transcripts which were necessary for petitioner's pending appeal.
• Petitioner was denied effective assistance of counsel when Sheldon failed to provide him with his casefile and transcripts which were necessary for petitioner's pending appeal.

Id. Attached to the Commonwealth's motion to dismiss filed in the Supreme Court of Virginia was an affidavit of Gregory. In the affidavit, Gregory stated that the only request that [he] received for transcripts during the pendency of the appeal was a request to send the transcripts to [] Sheldon. This was done. [He] ... received subsequent request[s] for the transcript from [petitioner]. They were packed and mailed to [petitioner], but the[y] were refused and returned to [Gregory] as "unordered." [Gregory] wrote to [petitioner] to ask for an explanation, but he refused [Gregory's] letter.

Id. The Supreme Court of Virginia denied the habeas corpus petition by Order dated July 5, 2016. Id. On August 7, 2016, petitioner filed the instant federal petition, wherein he challenges his ...


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