United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE
Frank Canale, Jr., a Virginia inmate proceeding with counsel,
submitted a 28 U.S.C. § 2254 petition (hereinafter
"§ 2254 Petition, " ECF No. 1) challenging his
2012 convictions in the Circuit Court of the City of
Williamsburg and County of James City ("Circuit
Court"). Canale argues that he is entitled to relief on
the following grounds:
Claim One: "The trial court erred in denying
Canale's motion to inspect the original computer evidence
- Due Process and Sixth Amendment violations." (Mem.
Supp. § 2254 Pet. 4.)
Claim Two: "The trial court erred in upholding the trial
court's decision to deny Canale's motions to strike
because the Commonwealth had not proved beyond a reasonable
doubt that Canale knew or should have known that
"ridergurl80" was under 15-years-old - insufficient
evidence under the Fourteenth Amendment." (Id.
has moved to dismiss the action. (ECF No. 10.) Canale has
responded. (ECF No. 13.) As discussed below, Canale's
Claim One is procedurally defaulted and thus is barred from
review here. Additionally, Claims One and Two lack merit.
Thus, for the reasons that follow, the Motion to Dismiss will
bench trial, the Circuit Court convicted Canale of six counts
of soliciting sex with a child less than 15 years of age by
using a computer and one count of attempted indecent
liberties. (See ECF No. 12-1, at 1.) The Circuit
Court sentenced Canale to 120 years of incarceration with 65
years suspended. (Id. at 2.) Canale appealed his
convictions, raising there the following two assignments of
error that are relevant here:
1. The Trial Court Erred in Denying Canale's Motion to
Inspect Investigator Gibbs' Computer
2. The Trial Court Erred in Denying Canale's Motion to
Strike and Renewed Motion to Strike Because the Commonwealth
Had Not Proved Beyond a Reasonable Doubt that Canale Knew or
Should Have Known that "ridergurlSO" was Under
for Appeal 5, Canale v. Commonwealth, No. 2349-12-1
(Va. Ct. App. Apr. 1, 2013) . The Court of Appeals of
Virginia denied the petition for appeal. (ECF No. 12-2, at
1.) The Supreme Court of Virginia refused the subsequent
petition for appeal. Canale v. Commonwealth, No.
131763, at 1 (Va. Mar. 28, 2014).
by counsel, Domingo J. Rivera, Esq., filed a petition for a
writ of habeas corpus in the Circuit Court raising the same
two claims as he presented as Assignments of Error 1 and 2 in
his petition for appeal in the Court of Appeals of Virginia.
Petition for Writ of Habeas Corpus 5, 10, Canale v.
Clarke, No. CL15-736 (Va. Cir. Ct. June 2, 2015). The
Circuit Court dismissed Canale's habeas petition finding
that "Canale7s claims are the same as those he presented
on direct appeal because habeas corpus may not serve as an
additional appeal or as a forum in which to relitigate issues
already decided against Canale in prior proceedings.
Henry v. Warden, 265 Va. 246, 249, 576 S.E.2d 495,
496 (2003); see also Hawks v. Cox, 211 Va. 91, 175
S.E.2d 271 (1970)." (ECF No. 12-4, at 1-2.) The Supreme
Court of Virginia dismissed the petition for appeal. (ECF No.
12-5, at 1.)
Canale, again by counsel Rivera, filed the pending §
BASIC PRINCIPLES GOVERNING HABEAS PETITIONS
Exhaustion And Procedural Default
exhaustion requirement "'is rooted in
considerations of federal-state comity, 7" and in the
Congressional determination reflected in the federal habeas
statutes "that exhaustion of adequate state remedies
will 'best serve the policies of federalism.'"
Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va.
2005) (quoting Preiser v. Rodriguez, 411 U.S. 475,
491-92 & n. 10 (1973)). The purpose of the exhaustion
requirement is "to give the State an initial opportunity
to pass upon and correct alleged violations of its
prisoners' federal rights." Picard v.
Connor, 404 U.S. 270, 275 (1971) (internal quotation
marks omitted). Exhaustion has two aspects. First, a
petitioner must use all available state remedies before he
can apply for federal habeas relief. See 0'Sullivan
v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether
a petitioner has used all available state remedies, the
statute notes that a habeas petitioner "shall not be
deemed to have exhausted the remedies available in the courts
of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the question
presented." 28 U.S.C. § 2254(c).
second aspect of exhaustion requires a petitioner to have
offered the state courts an adequate
"'opportunity'" to address the
constitutional claims advanced on federal habeas. Baldwin
v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v.
Henry, 513 U.S. 364, 365 (1995)) (additional internal
quotation marks omitted) . "To provide the State with
the necessary 'opportunity, ' the prisoner must
"fairly present' his claim in each appropriate state
court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the
federal nature of the claim." Id. (quoting
Duncan, 513 U.S. at 365-66) . Fair presentation
demands that a petitioner must present
"'both the operative facts and the
controlling legal principles' associated with each
claim" to the state courts. Longworth v.
Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting
Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir.
2000)). The burden of proving that a claim has been exhausted
in accordance with a "state's chosen procedural
scheme" lies with the petitioner. Mallory v.
Smith, 27 F.3d 991, 994-95 (4th Cir. 1994) .
chosen procedural scheme requires prisoners seeking habeas
relief to use a standard form prescribed by statute.
See Va. Code Ann. § 8.01-655 (West 2017). The
"form is divided into sections, each of which contains
simple prompts directing the petitioner to provide the basic
information necessary to review his conviction."
Mallory, 27 F.3d at 992. The failure to complete
properly the form with respect to a particular claim may
preclude a finding that the inmate fairly presented the claim
to the Virginia courts. Id. at 995-96.
distinct but related limit on the scope of federal habeas
review is the doctrine of procedural default."
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
This doctrine provides that, ' [i]f a state court clearly
and expressly bases its dismissal of a habeas
petitioner's claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground
for the dismissal, the habeas petitioner has procedurally
defaulted his federal habeas claim." Id.
(citing Coleman v. Thompson, 501 U.S. 722, 731-32
(1991)). A federal habeas petitioner also procedurally
defaults claims when he or she "fails to exhaust
available state remedies and 'the court to
which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find
the claims procedurally barred.'" Id.
(quoting Coleman, 501 U.S. at 735 n.l). The burden
of pleading and proving that a claim is procedurally
defaulted rests with the state. Jones v. Sussex I State
Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing
cases). Absent a showing of cause and prejudice or a
fundamental miscarriage of justice, this Court cannot review
the merits of a defaulted claim. See Harris v. Reed,
489 U.S. 255, 262 (1989) .
Applicable Constraints On Federal Habeas Review
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;
(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)).
general principles, and the claim specific precepts guide the
resolution of Canale's petition.
ANALYSIS OF CLAIM ONE
was convicted of conduct that occurred on the internet in a
so-called "chat room." In sum, Canale thought he
was arranging a sexual liason with a minor woman when, in
fact, he was communicating with a law enforcement officer,
William R. Gibbs ("Gibbs"). Gibbs used a police
computer during the communications, and it is access to that
computer that is the issue raised in Claim One.
claim, Canale argues that the "[t]rial court erred in
denying [his] motion to inspect the original computer [the
one used by Gibbs] - Due Process and Sixth Amendment
violations." (Mem. Supp. § 2254 Pet. 4.) Clarke
argues that Canale failed to exhaust Claim One as presented
here because Canales did not include a claim of due process
or the Sixth Amendment in either his direct appeal or in his
habeas petition. It is undisputed that Canale did not include
the words "due process" or "Sixth
Amendment" in Assignment of Error One. With respect to
Claim One, Canale counters that he did indeed raise the due
process aspect of the current claims in the state courts. As
explained below, this argument is riddled with problems
making it difficult for the Court to decide whether the due
process portion of this claim is defaulted.
The Due Process Aspect Of Claim One
support of Claim One, and Assignment of Error One, Canale
relies principally on Jones v. Sussex I State
Prison, 591 F.3d 707, 713 (4th Cir. 2010), for the
proposition that a 11 litigant wishing to raise a federal
issue can easily indicate the federal law basis for his claim
in a state-court petition or brief, for example, by citing in
conjunction with the claim ... a case deciding such
a claim on federal grounds."
Id. (citation omitted). Canale argues that, because,
on a single occasion, in the body of his supporting argument
of the "Petition for Appeal with the Supreme Court of
Virginia, " he cited to a case that mentioned "due
process, " and because he cited one state case that
cited a federal due process case, he has "properly
alerted the state courts of his Due Process claim."
(Mem. Opp'n Mot. Dismiss 4-5, ECF No. 13.) Counsel then
provides a quote and a citation to "Respondent's
Motion to Dismiss, Exhibit 3, p.16" to support the
argument that he indeed raised a due process claim in state
court. (Id. at 5 (emphasis omitted) .)
initial matter, it is unclear what document Canale intends to
cite here. To the extent that he intends to cite to
Clarke's Brief in Support of Motion to Dismiss, the Court
finds that Exhibit 3, page 16 does not contain the quoted
text on which Canale relies. (See ECF No. 12-3, at
16.) Even assuming that Canale intended to cite to the
previous page of Exhibit 3, which is the Petition for Appeal
filed in the Supreme Court of Virginia on November 8, 2013,
the quoted language in the Memorandum in Opposition to
Clarke's Motion to Dismiss is not a direct quote from
that page of the Petition for Appeal. (Compare Mem.
Opp'n Mot. Dismiss 5, ECF No. 13, with ECF No.
12- 3, at 15.) Instead, it appears that Canale's counsel
has edited the quoted text by adding new citation information
that was not included in the Petition for Appeal. That
impropriety appears to be an attempt to show that Canale
truly raised a due process claim in state court. In so doing,
counsel has demonstrated a lack of candor with the Court, but
he has not proved his point.
Petition for Appeal filed by Canale in the Supreme Court of
Virginia on November 8, 2013, in support of the first
assignment of error, the opening paragraph provided the
The right of a defendant to call for evidence in his favor
"is central to the proper functioning of the criminal
justice system. It is designed to ensure that the defendant
in a criminal case will not be unduly shackled in his effort
to develop his best defense." Massey v.
Commonwealth, 230 Va. 436, 442 (1985). Article 1, §
8 of the Constitution of Virginia states this "includes
the right to prepare for trial by procuring both testimonial
and documentary evidence." Gilchrist v.
Commonwealth, 227 Va. 540');">227 Va. 540, 545 (1984) (internal
citations omitted). MT]he right to call for evidence in his
favor, including the right to prepare for trial . . . and to
ascertain the truth . . . lie at the heart of a fair trial,
and when they are abridged, an accused is denied due
process." Id. at 547 (internal citations
omitted) .w [A] criminal trial is fundamentally
unfair if the State proceeds against [a] defendant without
making certain that he has access to the raw
materials integral to the building of an effective
defense." Henshaw v. Commonwealth, 19 Va.App.
338, 334 (1994) (emphasis added). *[A]11 relevant facts must
be available to both the prosecution and the defense in order
to preserve the [adversarial] system's integrity."
(ECF No. 12-3, at 15.) The remainder of the argument contains
references to the Virginia Code, the Rules of the Supreme
Court of Virginia, and state court cases about the
"reasonableness" of his motion to inspect. All of
those authorities are cited in support of the contention that
Mt]he Court of Appeals erred in holding the trial court did
not abuse its discretion by denying Canale's motion to
inspect Investigator Gibbs' work computer, which he used
to allegedly chat with Canale." (Id. at 16-20.)
None of those authorities are offered in connection with a
due process argument.
unsurprising that the Court of Appeals of Virginia dismissed
the earlier version of this claim without mentioning due
process or the United States Constitution, finding instead
that the claim lacked merit under state rules. (ECF No. 12-2,
at 1-2.) The Supreme Court of Virginia summarily refused
Canale's petition for appeal.
state Petition for a Writ of Habeas Corpus, Canale raised the
same underlying claim as in his direct appeal. Using the
statutorily prescribed form,  Canale was represented that the
claims raised therein "[were] presented during Canale7s
direct appeal proceedings." Petition for Writ of Habeas
Corpus 11-12, Canale v. Clarke, No. CL15-736 (Va.
Cir. Ct. June 2, 2015) . In response to the question [in the
form], "[i] f any ground set forth in 14 has not been
presented to a court, list each ground and the reason why it
was not, " counsel stated: "Not Applicable."
See id. at 12.
body of the state Petition for Writ of Habeas Corpus, counsel
mentioned the term "due process" once in the
context of a quote, however, the thrust and substance of the
claim is based on state discovery and evidentiary principles.
See id. at 5-9. The Circuit Court dismissed
Canale's habeas petition finding that
Canale's claims are the same as those he presented on
direct appeal. The Court holds that habeas corpus may not
serve as an additional appeal or as a forum in which to
relitigate issues already decided against Canale in prior
proceedings. Henry v. Warden, 265 Va. 246, 249, 576
S.E.2S 495, 496 (2003); see also Hawks v. Cox, 211
Va. 91, 175 S.E.2d 271 (1970).
(ECF No. 12-4, at 1.) The Supreme Court of Virginia dismissed
the petition for appeal. (ECF No. 12-5, at 1.)
record, the Court cannot find that the federal constitutional
aspect of Claim One was fairly presented to the state courts
in accordance with Virginia's "chosen procedural
scheme." Mallory v. Smith, 27 F.3d 991, 995
(4th Cir. 1994). On direct appeal, Claim One was presented as
a violation of state law. Although counsel raised this claim
again in state habeas, he represented that these were the
same claims that had been raised on direct appeal
(i.e., violations of state law) . Petition for Writ
of Habeas Corpus 11-12, Canale, No. CL15-736.
Understandably, the Circuit Court rejected this claim on the
ground that it had been previously decided on direct
light of Canale's representation on the statutorily
prescribed form, the Court cannot find that any reference to
due process in Canale's submissions to the Circuit Court
in his state habeas "would suffice to fairly present the
constitutional aspect of [this] claim." Reyes v.
Kelly, No. 3:09CV23-HEH, 2009 WL 3109856, at *4 (E.D.
Va. Sept. 25, 2009) (citing Mailory, 27 F.3d at 996)
(explaining that it was "unlikely" that petitioner
had fairly presented federal constitutional aspects of claims
in accordance with Virginia's "chosen procedural
scheme" under similar circumstances).
first time in Claim One of this § 2254 Petition, counsel
inserts at the beginning of the supporting argument two
federal cases pertaining to due process. (Mem. Supp. §
2254 Pet. 4-5.) After that introduction, the argument from
state court is repeated complete with citation to rules of
the Supreme Court of Virginia and relies almost exclusively
state law cases. (Id. at 5-8.)
argues that the due process aspect of the claim is not
defaulted because he "expressly claimed that a due
process violation had occurred when the Court refused to
Order the Commonwealth to cause or permit inspection of the
evidence." (Mem. Opp'n 5.) Counsel also contends
that he "expressly" raised a due process claim by
quoting the following: "[T]he right to call for evidence
in his favor, including the right to prepare for trial . . .
and to ascertain the truth . . . lie at the heart of a fair
trial, and when they are abridged, an accused is denied due
process. [Gilchrist v. Comm., 227 Va. 540');">227 Va. 540, ] 547
[(1984)]." (Mem. Opp'n Mot. Dismiss. 5.) Finally,
counsel argues that he:
cited federal due process cases to support his assignments of
error in the Virginia courts. Petitioner's due process
argument was based, inter alia, in Henshaw v.
Commonwealth, 19 Va.App. 338 (1994). Henshaw [sic]
quotes Ake v. Oklahome [sic], a federal due process
case, for supporting its ruling that due process is denied
when a defendant is denied access to the 'raw
materials integral to the building of an effective
defense.' Henshaw, 19 Va.App. at 344.
Furthermore, the Henshaw due process analysis is
further predicated in other federal Constitutional due
(Id. at 5.)
it is correct that Henshaw (a state case) cites the
federal case, Ake v. Oklahoma, 470 U.S. 68, 77
(1985), in one portion of its discussion of due process, the
appellant, in Henshaw, actually had raised a
"Virginia constitutional due process argument."
Henshaw v. Comm., 451 S.E.2d 415, 418 (Va. Ct. App.
1994). Indeed, in its holding in Henshaw, the Court
of Appeals of Virginia explained: "We hold that the due
process rights of Article I, Section 8 of the Virginia
Constitution give a criminal defendant a right to view,
photograph, and take measurements of the crime scene . . .
." Id. at 419. Thus, contrary to counsel's
suggestion here, the citation to Henshaw does not
satisfy the example found in Jones, that a
"litigant wishing to raise a federal issue can easily
indicate the federal law basis for his claim in a state-court
petition or brief . . . by citing in conjunction with the
claim ... a case deciding such a
claim on federal grounds."
Jones, 591 F.3d at 713 (citation omitted). Canale
did little more than *scatter some makeshift needles in the
haystack of the state court record." Id.
(citation omitted) (internal quotation marks omitted);
see Pethtel v. Ballard, 617 F.3d 299, 306 (4th Cir.
2010) ("Presenting the substance of the claim requires
that the claim be presented face-up and squarely; the federal
question must be plainly defined. Oblique references which
hint that a theory may be lurking in the woodwork will not
turn the trick." (citation omitted) (internal quotation
marks omitted).) Viewing the record as a whole, the Court
finds that Canale failed to fairly present to the state
courts the due process aspect of Claim One, and accordingly
Claim One is defaulted and barred from review here. See
Reyes v. Kelly, No. 3:09CV23-HEH, 2011 WL 5149975, at
*3-4 (E.D. Va. Sept. 20, 2011).
the due process aspect of Claim One was defaulted, his
counsel was at fault for failing properly to raise that claim
in state court. Counsel in this case, who also represented
Canale in state court in his criminal proceedings and on
collateral review, simply refuses to acknowledge his
responsibility for defaulting the federal constitutional
aspects of Claim One. However, under Martinez v.
Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler,
133 S.Ct. 1911 (2013), the fact that counsel may have
provided Canale with ineffective assistance of counsel at
Canale's "initial-review collateral proceeding"
may establish cause for the procedural default of this claim.
Martinez, 566 U.S. at 17-18. Accordingly, the Court
addresses the due process aspect of this claim on its merits.
Merits Review Of Due Process Aspect Of Claim One
Claim One, it is now argued that "[t]he trial court
erred in denying Canale's motion to inspect the original
computer evidence" amounting to a violation of due
process. (Mem. Supp. § 2254 Pet. 4.) And, it is now
contended that Canale7 s right to due process was violated
when he was prohibited "from inspecting the most
essential item of evidence offered by the prosecution, namely
the electronic version of the chat logs. (Id.)
Upon review of the record, the Court fails to discern a
violation of due process.
Court of Appeals of Virginia aptly summarized the state law
aspect of this claim as follows and found that it lacked
The Commonwealth provided appellant with documents
transcribing the on-line chats between appellant and an
on-line minor persona, "ridergur11180" [sic]
("the victim"), created by Investigator Gibbs.
Gibbs testified he copied and pasted the contents of the
chats and then printed them as a word document. He stated he
reviewed the printouts for accuracy in context, dates, and
times as compared to what appeared on the computer screen
depicting the exchanges between the appellant and the victim.
Appellant had the opportunity to cross-examine Gibbs
concerning the information and the procedures he used to
create the documents. However, appellant sought to have
access to what he referred to as the "raw evidence"
contained on the police computer used by Gibbs and metadata
in order to determine whether there were any inconsistences
in the time frames or any alterations or modifications
between the evidence as contained on the computer and the
copies of the chats the Commonwealth provided to appellant.
There is no general constitutional right to discovery in a
criminal case, even where a capital offense is charged. While
a defendant has the right to exculpatory evidence in the
Commonwealth's possession upon request, Rule 3A:11
defines the other discovery available to the accused in a
felony case. Under Rule 3A:11, a felony defendant is entitled
to his own "written or recorded statements" made to
law enforcement personnel, certain written reports in the
possession of the Commonwealth, and "tangible objects .
. . within the possession, custody, or control of the
Commonwealth" which "may be material to the
preparation of [the] defense." Rule 3A:11(b).
Juniper v. Commonwealth, 271 Va. 362, 394, 626
S.E.2d 383, 404 (2006) (case citations omitted).
Appellant makes no allegation that the evidence was
exculpatory. In addition, appellant "does not assert
that any additional discoverable material actually exists or
that he has any reason to believe that there is any which has
not been disclosed." See id. at 394, 626 S.E.2d
at 405. Appellant failed to show the evidence would be
material to the preparation of his defense. As in
Juniper, appellant's request was "a
speculative search for evidence" which was not
authorized by statute or rule of court. See id. at