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Tully v. Clarke

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

May 8, 2017

THOMAS TULLY, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski United States District Judge.

         Thomas Tully, 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 Frederick County Circuit Court. Respondent filed a motion to dismiss Tully's § 2254 petition, and Tully responded, making die matter ripe for disposition. After review of the record, the court concludes that Tully's petition is successive, procedurally defaulted, and without merit, requiring the motion to dismiss to be granted.

         I. Background

         In 2007, the Frederick County Circuit Court convicted Tully of breaking and entering with intent to commit assault and battery, malicious wounding, misdemeanor assault and battery, and two counts of maliciously causing bodily injury by a caustic substance. The circuit court sentenced him to twenty-five years imprisonment. Tully appealed his convictions, but the state appellate courts denied his appeals. Tully then filed two petitions for a writ of habeas corpus, but the Virginia Supreme Court denied both petitions, as well as a petition for a rehearing. Tully then filed a federal habeas action in the Eastern District of Virginia, which the court denied in 2011.

         Years later, in 2015, Tully filed a third state habeas petition in the Frederick County Circuit Court, claiming that the Commonwealth withheld exculpatory evidence and knowingly presented false testimony related to his daughter's statement at trial that a "red substance" in a photograph of her arm and shirt was "I guess blood from my mom or me." Tr. 437-38. Tully argues that because the Commonwealth did not collect any "biological evidence" at the scene, no forensic analysis was ever performed on Tully's daughter's shirt or arm; therefore, the testimony should not have been admitted, and the Commonwealth withheld evidence by (1) not testing the substance and (2) not informing Tully that the substance was never tested. The circuit court found the claims defaulted and without merit. The Virginia Supreme Court refused his appeal.

         Tully then filed the present petition, raising the same claims as in his 2015 state habeas petition. Initially, the court entered an order denying the respondent's motion to dismiss without prejudice seeking to have Tully request permission from the Fourth Circuit to file a successive petition under 28 U.S.C. § 2244(b)(2). The respondent supplemented the motion to dismiss, and argues that (1) the petition is indeed successive, (2) the claims are procedurally defaulted, and (3) the claims are without merit.

         II. Standards of Review

         A. Successive Petition

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) strictly limits the consideration of second or successive habeas petitions. See In re Williams, 444 F.3d 233, 235 (4th Cir. 2006) (abrogated on other grounds by In re Gray. 850 F.3d 139 (4th Cir. 2017)). Generally, the court must dismiss with prejudice any second or successive claims previously adjudicated on die merits. 28 U.S.C. § 2244(b); see also Villanueva v. United States, 346 F.3d 55, 60 (2d Cir. 2003). Additionally, a petitioner cannot bring "new" claims in a second or successive petition unless the applicant receives permission from the appropriate court of appeals by showing that (1) the claim relies on a new, previously unavailable, and retroactively applied rule of constitutional or federal law, or (2) if the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and the facts underlying the claim, if proven, would sufficiently establish by clear and convincing evidence that no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b).

         However, "not every numerically second petition is a 'second or successive' petition within the meaning of the AEDPA." In re Williams, 444 F.3d at 235. Petitions that are not considered successive include: (1) if a petition is first dismissed without prejudice on technical grounds, such as failure to exhaust state remedies, (2) if a claim was not ripe at the time of the first petition, such as when a judgment intervenes between the two habeas petitions and the new application challenges the new judgment, or when a petitioner seeks to file a Ford v. Wainwright, 477 U.S. 399 (1986) mental incompetency claim, and (3) when a prisoner uses a motion pursuant to 28 U.S.C. § 2255 or § 2254 to regain a right to appeal. See, e.g.. In re Williams, 444 F.3d at 235 (discussing technical grounds); In re Gray, 850 F.3d at 142 (discussing new petition for intervening judgment); Panetti v. Quarterman, 551 U.S. 930 (2007) (discussing Ford motions for incompetence); In re Goddard, 170 F.3d 435, 438 (4th Cir. 1999) (discussing petitioner seeking to regain a right to appeal under § 2255); Evans v. Smith, 220 F.3d 306 (4th Cir. 2000) (exhaustive review of all exceptions).

         Additionally, the Fourth Circuit has held that Brady v. Maryland, 373 U.S. 83 (1963)[1] claims in "successive" habeas petitions require certification from the court of appeals. In Evans, the district court had adjudicated a prior federal habeas petition on the merits. When the petitioner, without seeking certification from the Fourth Circuit, filed a second habeas petition that included a Brady claim, the circuit court of appeals held:

To exempt [the petitioner's] Brady claim from the requirements of § 2244(b) would thwart the statutory scheme and render Congress' limitations on second or successive petitions a nullity in a wide range of cases. Indeed, it would open the federal courts to all sorts of allegedly newly discovered claims without requiting petitioners to show both cause and prejudice.

Evans, 220 F.3d at 324.[2] The court of appeals continued, "[t]here is accordingly no reason not to count [petitioner's] now-adjudicated first petition as his one and only 'initial' petition when considering his present attempt to file a Brady claim." Id. at 325.

         B. ...


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