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Smith v. Clarke

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

March 24, 2017

JAMES WESLEY SMITH, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          M. Hannah Lauck United States District Judge

         James Wesley Smith, a Virginia state prisoner proceeding with counsel, brings this petition pursuant to 28 U.S.C. § 2254. ("§ 2254 Petition, " ECF No. 1.) A grand jury in the Circuit Court of the County of Mathews charged Smith with abduction with intent to defile after having previously been convicted of rape and aggravated sexual battery after having been convicted of rape.[1] (Indictments 1-2, ECF No. 7-4.) Smith's first trial ended in a hung jury. (§ 2254 Pet. ¶ 3.) Following a second trial, Smith was convicted on both counts and sentenced to life plus twenty years.[2] (Id.)

         The Circuit Court aptly summarized the evidence of the crime as follows:

At trial, the victim testified that on July 28, 2011, she was running on a rural road in Mathews County when the petitioner, who was driving a truck toward the victim, stopped his vehicle and asked her if she knew where "the Edwards" lived. The victim said "no" and continued her run. A minute later, the petitioner parked his vehicle at an angle in front of the victim, cutting off her running route. The petitioner again asked the victim if she knew the Edwards. When she responded that she did not, the petitioner said, "[O]kay, get in the truck." When the victim replied, "[N]o, I'm okay, " the petitioner said "very firmly, " "[N]o, get in the truck."
While this exchange was occurring, the petitioner approached the victim and moved behind her. He put his hands on her upper arms and pushed her toward the truck. The victim resisted and screamed for help. At trial, she recalled her shoes "sliding in the gravel" as the petitioner pushed her toward his truck. Thereafter, the petitioner picked the victim up by her arms attempted to "shove [her] feet first into the driver's side of the truck."
The victim was able to brace her feet on the frame of the door and she prevented the petitioner from pushing her into the truck. However, while the petitioner held the victim against the door frame, he removed one hand from her arm and placed it inside her shorts so that his fingers were on the built-in underwear over her vagina.
Eventually, the victim was able to break free and she ran to a neighbor's home. The victim testified that she was able to see the petitioner clearly, both when he asked her for directions initially and when during the struggle to push the victim into the truck.

(Smith v. Clarke, No. CL13-59, at 2-3, (Va. Cir. Ct. Feb. 6, 2014) ECF No. 7-7 (alterations in original).)

         I. Smith's Claims

         In his § 2254 Petition, Smith demands relief upon the following grounds:[3]

Claim I Trial counsel failed to move for a new jury panel after a prospective juror, Mr. Fernald, announced in open court that he knew the Petitioner from a "prior crime similar to-." And, during a sidebar discussion, (which was overheard by the juror panel in the courtroom), Mr. Fernald stated he had direct knowledge of the previous rape case, and the Petitioner "picked the girl up, he took her." (§2254 Pet. ¶25.)
Claim II Trial counsel failed to impeach [V's] testimony regarding her prior sworn testimony at the preliminary hearing and the first trial that she had not taken any steps to find out who the perpetrator was other than through the police, when Inv. Riley's notes indicate the contrary. (M¶39.)[4]
Claim III Counsel failed to present a stipulation he obtained from nurse Terry Haywood (or other similar evidence) that, on August 22, 2011, the Petitioner measured 6'5" tall and weighed 364 pounds to refute ["V's"] report and testimony that her attacker was 5'9" to 5' 10" and weighed 250 pounds. (/*¶49.)
Claim IV Counsel failed to present testimony from Deputy Stragal that, as an experienced law enforcement agent, he "was concerned about" the fact that the Petitioner was "a lot bigger" than "V" had reported. (/d¶52.)
Claim V Counsel failed to object, on hearsay and confrontation grounds, to the testimony of Inv. Riley that an unidentified [female] bank [employee] told him that Balderson made no debit card transactions on July 28, 2011, but did so on July 29, 2011, and that no such transactions would have posted the day after the transactions actually occurred. (Id. ¶ 58.)
Claim VI The Petitioner was denied the right to effective assistance of counsel as a result of any and all of counsel's errors in Claims I through V, and prejudice must be viewed in the aggregate within the totality of the circumstances. (Id. ¶ 66.)

         During state habeas proceedings, Smith presented Claim II and Claim IV. (§ 2254 Pet. ¶ 17.) Smith's remaining claims of ineffective assistance of counsel were not presented in state court and are potentially subject to default. (Id.) Nevertheless, "in light of Martinez v. Ryan, [566 U.S. 1] (2012), the Court addresses the merits of these claims." Cottrell v. Clarke, No. 3:16cv200, 2016 WL 5662023, at *2 (E.D. Va. Sept. 29, 2016) (citing Martinez, 566 U.S. at 22 (Scalia, J., dissenting)).[5] For the reasons set forth below, the Court will grant Respondent's Motion to Dismiss and deny the § 2254 Petition.[6]

         II. Ineffective Assistance of Counsel

         To demonstrate ineffective assistance of counsel, a convicted defendant must show, first, that counsel's representation was deficient and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the '"strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         A. Failure to Move for a New Jury Panel

         In Claim I, Smith faults counsel for not moving "for a new jury panel after a prospective juror, Mr. Fernald, announced in open court that he knew the Petitioner from a 'prior crime similar to-.'" (§ 2254 Pet. ¶ 25.) At this juncture, it is appropriate to recount the sequence of events surrounding this claim. At the inception of voir dire, the Circuit Court informed the venire that Smith was "charged with two offenses. One is abduction with intent to defile, having previously been convicted of rape. And, secondly, aggravated sexual battery having previously been convicted of rape." (Aug. 22, 2012 Tr. 59, ECF No. 8-3.) Thereafter, the Circuit Court asked the venire persons whether any of them knew Smith. (Aug. 22, 2012 Tr. 60.) Mr. Fernald raised his hand and stated that he knew Smith "[s]ocially." (Aug. 22, 2012 Tr. 60.) Then, the following exchange occurred:

THE COURT: Okay. Would the social contact that you have had with him make it difficult or impossible for you to listen to the evidence in this case and render a fair and impartial verdict for both parties?
[FERNALD]: We had a, I guess, it was a prior crime similar to -
MR BOWEN: Your Honor, I don't know what he's going to say, but I would wonder if we need to take him up outside of the presence of the other jurors?
THE COURT: We could do that. We'll pass Mr. Fernald for just a second....

(Aug. 22, 2012 Tr. 61.)

         Shortly thereafter, at a sidebar, the Circuit Court questioned Mr. Fernald.

THE COURT: Mr. Fernald, if you would come up also, please. Sir, you have indicated to me that you had some knowledge of Mr. Smith or were related by blood or marriage.
[FERNALD]: We were at a party one night, and I guess it was in the first case, the rape or whatever. And -
THE COURT: We being who?
[FERNALD]: He picked the girl up, he took her.
THE COURT: What? MR CAPRIO: I'm listening. MR. BOWEN: What he's saying is the previous rape case, he has knowledge of the previous rape. THE COURT: Okay.
MR. BOWEN: He was at the party where the girl was, Wesley took her.
THE COURT: Do you want him to stay or go?
MR. CAPRIO: He has to go.
MR. BOWEN: It's appealable.
THE COURT: So we are going to excuse you. Thank you. You may go....

(Aug. 22, 2012 Tr. 68-69, ECF No. 9-1.) Although the foregoing exchange took place at a sidebar, Smith, who was seated at the defense table, heard the whole exchange. (§ 2254 Pet. Ex. 1 "Smith Aff." ¶ 9, ECF No. 1-1.) Smith insists that the jurors, who were seated even closer to the exchange must have heard it as well. (Id.)

         Assuming counsel knew the venire had heard the above exchange, given the totality of the circumstances, Smith fails to demonstrate counsel acted deficiently by not demanding a new venire. At best, the above exchange potentially suggested to the prospective jurors that Smith also had abducted the woman he had raped. Nevertheless, shortly after Mr. Fernald was dismissed, the prospective jurors unequivocally assured the Circuit Court that they did not "know any reason whatsoever why [they could not] give both sides in this case a fair and impartial trial[.]" (Aug. 22, 2012 Tr. 76.) Counsel was well aware that, given the nature of the criminal charges, he was not going to be able to shield the jury from the fact his client had a proven history of serious sexual misconduct. Counsel further knew that the prosecution's first exhibit would be a stipulation regarding the prior rape conviction. (Aug. 22, 2012 Tr. 119-24, ECF No. 10-2.) Additionally, counsel knew that the stipulation would be followed by a jury instruction which read: "Previous conviction is an element. Evidence that the defendant was previously convicted of rape should be considered only for proof of the element of a prior conviction and not as proof he committed the offenses for which he is charged." (Aug. 22, 2012 Tr. 125.)

         In order to prevail on this claim, Smith must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch, 273 F.3d at 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). He fails to do so. Given the circumstances recited above, Smith fails to demonstrate that counsel acted unreasonably by not moving for a new jury panel on the possibility that the jurors might have been unalterably biased by Mr. Fernald's comments. Furthermore, Smith fails to demonstrate any possibility that the Circuit Court would have granted a motion for a new jury panel had counsel so moved. Indeed, Smith does not even identify the statute or case law that would govern such a motion. Smith would not be entitled to strike a juror or an entire panel of jurors simply because they heard something about the crime or the accused. Irvin v. Dowd, 366 U.S. 717, 722 (1961) ("It is not required, however, that the jurors be totally ignorant of the facts and issues involved."); see also Murphy v. Florida, 421 U.S. 794, 801 n.5 (1975) (upholding the seating of a juror, who was later rehabilitated, but who initially stated during voir dire that, "My experience of [the accused] is such that right now I would find him guilty."). Here, Smith's previous conviction for rape constituted an element of the offense before the jury. The law clearly holds that a prospective juror with prior knowledge of a crime or a defendant can nevertheless "lay aside his [or her] impression or opinion and render a verdict based on the evidence presented in court." Irvin, 366 U.S. at 723 (citations omitted). Smith's jurors assured the Circuit Court that they could do just that. Accordingly, Claim I will be dismissed because Smith fails to demonstrate deficiency or prejudice.

         B. Alleged Failure to ...


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