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Yo v. Clarke

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

August 10, 2017

YO, f/k/a Mario L. Ballard, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          M. Hannah Lauck, Judge

         Yo, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1) challenging his state collateral proceedings as well as his placement in the Sex Offender Residential Treatment ("S.O.R.T") program during his confinement. On June 21, 2017, the Magistrate Judge issued a Report and Recommendation that recommended denying Yo's § 2254 Petition as well as Yo's Motion for Discovery. (ECF No. 25.) Yo has filed objections. (ECF No. 26.) Yo has also filed an Affidavit with respect to his objections ("Yo Affidavit, " ECF No. 27). For the reasons that follow, Yo's objections will be OVERRULED, and Yo's § 2254 Petition and Motion for Discovery will be DENIED.

         I. BACKGROUND

         The Magistrate Judge made the following findings and recommendations:

A. Relevant Procedural History and Yo's Claims
Yo was convicted in the Circuit Court of Nottoway County, Virginia ("Circuit Court") of one count of malicious wounding. (ECF No. 14-1, at 1-2.)[1]On January 8, 2010, the Circuit Court entered judgment and sentenced Yo to ten years of incarceration. (Id. at 2.) The Court of Appeals of Virginia subsequently refused Yo's petition for appeal. (ECF No. 14-8, at 1.)
On October 3, 2013, Yo filed a § 2254 petition in this Court, challenging his malicious wounding conviction. (See ECF No. 14-11, at 1-26.) By Memorandum Opinion and Order entered on July 1, 2014, the Court denied Yo's petition. Yo v. Lester, No. 3:13CV701, 2014 WL 2968069, at *6 (E.D. Va. July 1, 2014). The United States Court of Appeals for the Fourth Circuit denied a certificate of appealability and dismissed Yo's appeal. Yo v. Lester, 614 F.App'x 678, 679 (4th Cir. 2015). The United States Supreme Court denied Yo's petition for a writ of certiorari. Yo v. Ratliffe-Walker, 136 S.Ct. 1176 (2016).

         On January 27, 2016, Yo filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. (ECF No. 14-14, at 1.) Yo raised the following claims for relief:

a. Ex Post Facto Clause violation for the state and federal Constitution because the Virginia Department of Corrections did an administrative transfer of the Petitioner due to a new policy it had enacted after Petitioner's sentence, requiring him to be placed at Greensville Correctional Center to participate in its sex offenders program even though he is not incarcerated for a sex crime, and because the policy initially stated that the offender had to be incarcerated for a sex crime.
b. Due Process Clause violation for the state and federal Constitution because the Petitioner was at a lower level facility, where he had earned a right to be by way of his good behavior.
c. Special law clause violation for the state and federal Constitution because the respondent has acted on a whim simply because Petitioner has a sex crime on his record, as a result taking him away from his numerous privileges.
d. Slavery abolished clause violation because the respondent kidnapped Petitioner after knowing that he was civilly committed since 2008, meaning once Petitioner is released he will be remanded to the Virginia Center for Behavior Rehabilitation.
e. Cruel and Unusual Punishment clause violation [of] the state and federal [Constitution] because Virginia has applied four penalties to Petitioner for one prior offense and they are: civil commitment, sex offender registration, and notification, and S.O.R.T., which has increased his punishment.

(Id. at 4-5.)[2] On May 10, 2016, the Supreme Court of Virginia dismissed Yo's petition, concluding that his "claims, which challenge the conditions of his confinement, are barred because the writ is not available to secure a judicial determination of any question which, even if determined in petitioner's favor, could not affect the lawfulness of his custody and detention." (ECF No. 14-15, at 1 (citation omitted).)

         On June 9, 2016, Yo filed the instant § 2254 Petition in this Court.[3](§ 2254 Pet. 14.) In his § 2254 Petition, Yo raises the following claims for relief:

Claim One: "Suspension of habeas corpus violation[.] On May 10, 2016, the Supreme Court of Virginia dismissed the Petitioner's writ of habeas corpus without a hearing. Likewise, it neither issued a show cause order for the above said writ." (Id. at 5.)
Claim Two: "Peonage or slavery abolished clause violation[.] The Respondent has taken the Petitioner from Lunenburg Correctional Center and placed him into the custody of Greensville Correctional Center, forcing him to partake in its Sex Offender Residential Treatment (S.O.R.T.) program. However, Petitioner does not have a current sex offense requiring him to be at GRCC." (Id. at 6-7.)

         Respondent has moved to dismiss, arguing that the instant § 2254 petition is successive, [4] that Claim One is procedurally defaulted, [5] and that Yo's claims lack merit. (Br. Supp. Mot. Dismiss 7-11, ECF No. 14.) Yo has filed a Response. (ECF No. 18.) Yo has also filed a Motion for Discovery. (ECF No. 19.) By Memorandum Order entered on April 25, 2017, the Court directed the parties to submit further briefing regarding Yo's contention that he lost ninety days of good conduct time because of his removal from the S.O.R.T. program. (ECF No. 21, at 2.) Both parties have responded. (ECF Nos. 23, 24.) As explained below, it is RECOMMENDED that Yo's claims be DISMISSED and that Yo's Motion for Discovery be DENIED.

         B. Analysis

         1. Applicable Constraints upon Habeas Review

         In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v Taylor, 529 U.S. 362, 410 (2000)).

         2. ...


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