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Canale v. Clarke

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

August 11, 2017

CHARLES FRANK CANALE, JR., Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE

         Charles 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:[1]

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. at 8.)

         Clarke 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 be granted.

         I. PROCEDURAL HISTORY

         After a 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 15-Years-Old

         Petition 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).

         Canale, 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.)

         Thereafter, Canale, again by counsel Rivera, filed the pending § 2254 Petition.

         II, BASIC PRINCIPLES GOVERNING HABEAS PETITIONS

         A. Exhaustion And Procedural Default

         The 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).

         The 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) .

         Virginia's 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.

         "A 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) .

         B. Applicable Constraints On Federal 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)).

         These general principles, and the claim specific precepts guide the resolution of Canale's petition.

         III. ANALYSIS OF CLAIM ONE

         Canale 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.[2]

         In that 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.[3] 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.

         A. The Due Process Aspect Of Claim One

         In 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) .)

         As an 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.

         In the 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 following:

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." Id.

(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.

         It is 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.

         In his state Petition for a Writ of Habeas Corpus, Canale raised the same underlying claim as in his direct appeal. Using the statutorily prescribed form, [4] 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.

         In the 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.)

         On this 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 appeal.[5]

         In 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).

         For the 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.)

         Counsel 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 process decisions.

(Id. at 5.)

         Although 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).[6]

         Although 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.

         B. Merits Review Of Due Process Aspect Of Claim One

         In 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.[7] (Id.) Upon review of the record, the Court fails to discern a violation of due process.

         The Court of Appeals of Virginia aptly summarized the state law aspect of this claim as follows and found that it lacked merit:

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 ...

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