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Mixon v. Clarke

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

July 20, 2017

David Wayne Mixon, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          GERALD BRUCE LEE UNITED STATES DISTRICT JUDGE.

         This Matter comes before the Court on respondent's Motion to Dismiss a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 filed by David Wayne Mixon, a Virginia inmate proceeding pro se. Mixon challenges the constitutionality of convictions entered in the Circuit Court of the City of Williamsburg and James City County.

         I. Background

         On March 13, 2013, petitioner entered a negotiated plea of guilty pursuant to North Carolina v. Alford. 400 U.S. 25 (1970) to a charge of sodomy with his minor stepdaughter. In exchange for the guilty plea, the Commonwealth moved to nolle prosequi nineteen additional charges of sexual abuse of the victim.

         On April 29, 2013, petitioner moved for leave to withdraw the plea. He testified that he initially had rejected the plea offer but decided to accept it after his counsel showed him letters that had been revealed to them by the prosecution that petitioner had written to the minor victim and her mother in 2012. Pet. Ex. 4, T. at 25. Counsel discussed the impact of these letters with petitioner and opined that their content had compromised petitioner's defense and substantially increased the risk of going to trial. Id., T. at 25. After petitioner was presented with this information he personally decided to accept the plea offer and to enter a plea of guilty. Id., T. at 25 - 26. The trial court denied the motion to withdraw the plea after finding that petitioner had failed to meet his burden to establish that the motion was made in good faith or to offer any "reasonable defense" in support of the motion that was not dilatory. Id, T. at 49 - 52, 58.

         On May 24, 2013, a final judgment of conviction was entered, and petitioner was sentenced in accordance with the terms of the plea agreement to twenty years' imprisonment with six years suspended. Petitioner sought to appeal his conviction to the Court of Appeals of Virginia, and a judge of that court refused the appeal on November 12, 2013. Mixon v. Commonwealth, R. No. 1088-13-1 (Va. Ct. App. Nov. 12, 2013). A three-judge panel declined further review on March 4, 2014. Mixon then petitioned the Supreme Court of Virginia for review, and his petition was refused on July 29, 2014. Mixon v. Commonwealth, R. No. 140501 (Va. July 29, 2014). A subsequent petition for rehearing was denied on September 19, 2014.

         Meanwhile, on September 14, 2014, petitioner, through counsel, filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the following claims:

A. Pursuant to Lafler v. Cooper, 132 S.Ct. 1376 (2012), counsel's advice regarding the wisdom of pleading guilty amounted to ineffective assistance, such that the plea was not 'constitutionally voluntary and intelligent.'
B. Counsels' pretrial investigation and interview of witnesses was insufficient to allow them to advise petitioner in a constitutionally adequate manner, rendering their assistance ineffective at both the plea hearing and during the subsequent proceedings on the motion to withdraw the plea.

         Petitioner, through counsel, sought to file an amended habeas corpus petition on April 18, 2016. Respondent objected on the ground that petitioner's proposed additional claims relied on facts that were know to him at the time he filed his initial habeas application, and the Supreme Court of Virginia denied the motion to amend in an Order dated May 9, 2016. Resp. Ex. 2-3. On July 13, 2016, the Court denied the claims petitioner raised in his initial habeas petition for reasons which will be discussed infra. Mixon v. Clarke, R. No. 151394 (Va. July 13, 2016); Resp. Ex. 4. His motion for rehearing was refused on October 6, 2016.

         On October 20, 2016, Mixon turned to the federal forum and timely filed the instant application for relief pursuant to §2254, in which he raises the following claims:

A. His plea was not made voluntarily and intelligently because counsel failed to "obtain information to competently advise [petitioner] on the strength of the case against him or the strength of his defense."
B. Counsel failed to prepare for or to advocate properly on his behalf at the plea hearing and the proceedings on the motion to withdraw the plea.
C. Counsel's failure to inquire into viable defenses amounted to ineffective assistance, and petitioner was prejudiced by counsel's failure to prepare, to advise him properly, and to advocate on his behalf at the plea hearing and the proceedings on the motion to withdraw the plea.

         Respondent filed a Motion to Dismiss the petition along with a supporting brief on December 8, 2016, and provided petitioner with the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. (Dkt. No. 8-10) Petitioner filed a reply on January 4, 2017 (Dkt. No. 13) and an amended reply on January 23, 2017. (Dkt. No. 16) Accordingly, this matter is now ripe for disposition.

         II. Exhaustion and Procedural Bar

         Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in the appropriate state court. 28 U.S.C. § 2254(b); Granberry v. Greer, 481 U.S. 129 (1987); Rose v. Lundy, 455 U.S. 509 (1982). To comply with the exhaustion requirement, a petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O' Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Thus, a petitioner convicted in Virginia first must have presented the same factual and legal claims raised in his federal habeas corpus application to the Supreme Court of Virginia on direct appeal or in a state habeas corpus petition. See, e.g., Duncan v. Henry. 513 U.S. 364 (1995).

         "A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000). "The procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim." Id. at 288 (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)). Thus, an unexhausted claim that would be defaulted if presented in state court is deemed to be simultaneously exhausted and procedurally barred from federal review. Bassette v. Thompson, 915 F.2d 932 (4th Cir. 1990).

         Here, to the extent that petitioner attempts to rely on facts and arguments that he raised for the first time in his unsuccessful Motion to Amend his state habeas application, his claims are both unexhausted and procedurally defaulted. Because petitioner's Motion to Amend was denied, the Supreme Court of Virginia never considered those aspects of his claims, and they consequently are unexhausted. Resp. Ex. 2-3. Further, were petitioner now to attempt to return to the state forum with those arguments, they would be defaulted pursuant to both Va. Code § 8.01-654(A)(2), which prescribes a limitations period for Virginia applications for habeas corpus relief, and § 8.01-654(B)(2), which precludes consideration of a habeas claim known to, but not raised by, a petitioner at the time he filed his initial application. Both of these state procedural rules have been held repeatedly to constitute "independent and adequate" bases for the procedural default of habeas claims. See, e.g., Sparrow v. Dir., Dep't of Corrections, 439 F.Supp.2d 584, 587 (E. D. Va. 2006) (finding the limitations period of Va. Code §8.01-654(A)(2) to be adequate and independent); Mackall v. Angelone, 131 F.3d 442, 446 (4th Cir. 1997) (determining procedural bar of successive habeas applications in Va. Code §8.01-654(B)(2) to be a well-recognized adequate and independent ground). Accordingly, to the extent that petitioner seeks to rely here on the arguments and evidence he attempted to introduce into the state habeas proceeding in his Motion to Amend the initial petition, those aspects of his claims are simultaneously exhausted and procedurally barred. See Coleman v. Thompson. 501 U.S. 722, 729-30 (1991).

         III. Standard of Review

         When a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant the petition based on the claim unless the state court's adjudication is contrary to, or an unreasonable application of, clearly established federal law, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is "contrary to" or "an unreasonable application of federal law requires an independent review of each standard. See Williams v. Tavlor,529 U.S. 362. 412-13 (2000). A state court's determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." 14 at 413. Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. This standard "recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights." Burt v. Titlow, __U.S.__, 134 S.Ct. 10, 15 (2013). As a result, "[t]he focus of federal court review is now on the state court decision that previously addressed the claims rather than the petitioner's free-standing claims themselves." McLee v. Angelone,967 F.Supp. 152, 156 (E.D. Va. 1997), appeal dismissed. 139 F.3d 891 (4th Cir. 1998) (table). The Supreme Court has recognized that the ยง 2254(d) standard of review "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" because it requires "a state prisoner [to] show that the state ...


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