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Bean v. Sussex I State Prison

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

September 14, 2017

RHETT BEAN, Petitioner,
v.
SUSSEX I STATE PRISON, Respondent.

          MEMORANDUM OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE

         Rhett Bean, a Virginia state prisoner proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§2254 Petition, " ECF No. 3) challenging his convictions in the Circuit Court for the City of Portsmouth, Virginia ("Circuit Court"). On July 18, 2017, the Magistrate Judge issued a Report and Recommendation wherein he recommended denying Bean's § 2254 Petition as barred by the statute of limitations. (ECF No. 33.) The Magistrate Judge also issued a Memorandum Order wherein he, inter alia, denied Bean's Motion for Discovery and Motion to Appoint Counsel to Assist in Discovery. (ECF No. 32.) Bean has filed objections. (ECF No. 34.) For the reasons that follow, Bean's objections will be OVERRULED, the Report and Recommendation will be ACCEPTED and ADOPTED, and the action will be DISMISSED.

         I. THE REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendation:

         A. Procedural History and Bean's Claims

         Following a bench trial on October 25, 2012, Bean was convicted of one count of rape and one count of object sexual penetration. (ECF No. 28-1, at 1, 4.) On July 19, 2013, the Circuit Court entered final judgment and sentenced Bean to seventy-five years of incarceration, with fifteen years suspended, for rape and seventy-five years of incarceration, with fifteen years suspended, for object sexual penetration. (Id. at 1-2.) The Circuit Court directed that Bean's sentences run concurrently. (Id. at 1.)

         Bean appealed to the Court of Appeals of Virginia, arguing that the evidence was insufficient to support his convictions. (ECF No. 1-1, at 1.) On December 30, 2013, the Court of Appeals of Virginia denied Bean's appeal. (Id.) With respect to the sufficiency of the evidence, the Court of Appeals stated:

So viewed, the evidence proved that on October 31, 2011, appellant and the victim had sexual intercourse. The victim was sixteen years old at the time, and appellant, a friend of the victim's mother, spent the previous night in the residence. The victim testified that, in the morning, appellant took her brother to the bus stop and then returned to the residence. Appellant went to the victim's room when the two were alone together, and appellant began saying "nasty things." The victim testified appellant "just jumped on [her] and he stuck his fingers into [her] vagina and then he took his fingers out and then he placed his penis into [her] vagina . . . ." She described how she attempted to "fight him off and explained appellant "pushed [her] chest down very hard" until she "just gave up from there." Afterwards, the victim told appellant to call her mother and appellant said that "something jumped into [him]" and he did not mean to do it. Appellant then left the residence. A short time later, the victim's mother and an ambulance arrived. The victim was examined at the hospital.
The victim's mother testified that appellant called her that day and said that he had "done something really bad." The victim's mother heard her daughter crying in the background and asked appellant what had happened. Appellant repeated that he had done something bad and stated she just had to come home. After the victim's mother took the victim to the hospital, appellant again called her on the phone. She allowed a police officer to listen to the conversation. Appellant repeatedly apologized, stated he "want[ed] to make this right, " and offered to give her money and his car. He offered to "pay for [the victim] to go to therapy for the rest of her life, " and begged her not to contact the police.
Appellant admitted having intercourse with the victim, but claimed it was consensual. He also denied inserting his fingers into her vagina.
Here, the trial court believed the victim's version of the events and rejected appellant's testimony. The trial court specifically noted that although the victim's account of the incident was inconsistent in part with earlier accounts, the victim provided a consistent description of the acts and "explained anything that has been the least bit different." The court also noted the victim's testimony was corroborated in part by her mother's testimony and that appellant's statements in the calls to the victim's mother were "the most incriminating thing in this case. . . ." In its role of judging witness credibility, the trier of fact is entitled to disbelieve a defendant's self-serving testimony and conclude that he is lying to conceal his guilt. Mar able v. Commonwealth, 27 Va.App. 505, 509-10, 500 S.E.2d 233, 235 (1998). The victim described "hitting [appellant] with [her] fists, trying to push him off of [her]" and explained how she resisted appellant, demonstrating appellant accomplished the unwanted penetration through the use of force. The record supports the trial court's credibility determination.
The Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant was guilty of rape and object sexual penetration.

(Id. at 1-4 (alterations in original).) On October 6, 2014, the Supreme Court of Virginia refused Bean's petition for appeal. (Id. at 5.)

         On June 15, 2015, Bean filed a petition for a writ of habeas corpus with the Circuit Court. (ECF No. 28-1, at 4.) On November 25, 2015, the Circuit Court denied Bean's petition. (Id. at 18-19.) On July 6, 2016, the Supreme Court of Virginia dismissed Bean's petition for appeal pursuant to Rule 5:9(a) of the Rules of the Supreme Court of Virginia, concluding that "the appeal was not perfected in the manner provided by law because [Bean] failed to file the notice of appeal[.]" (Id. at 20.)

         Bean dated his initial § 2254 Petition August 15, 2016.[1] (ECF No. 1, at 5.)[2] To the extent that Bean asserts this is the date he placed his initial § 2254 Petition in the prison mailing system for mailing to this Court, the Court finds Bean's assertion to be incredible. The envelope in which Bean mailed his initial § 2254 Petition is postmarked September 16, 2016 (id. at 6), and the Court did not receive Bean's initial § 2254 Petition until September 19, 2016 (id. at 2). The Court believes that Bean mailed his initial § 2254 Petition in September 2016. Nevertheless, as discussed infra, even using August 15, 2016 as the date when Bean filed his § 2254 Petition, the § 2254 Petition is untimely. Thus, the Court utilizes August 15, 2016 as the filed date. See Houston v. Lack, 487 U.S. 266, 276 (1988). In his § 2254 Petition, Bean asserts the following claims for relief:

Claim One "Trial counsel provided ineffective assistance of counsel in violation of the United States 6th Amend Constitution." (§ 2254 Pet. 5.)
Claim Two "The sentencing counsel did [not] bring to the court's attention that I was convicted without the bill of particulars accompanying the indictment 6th Amend violation." (Id. at 11.)
Claim Three "Appeal counsel did not raise the fact that the bill of particulars was omitted from trial no made a record to raise the issues that I was convicted on an uncharged offense violation of 6 Amend of U.S. Constitution right to counsel." (Id. at 12.)
Claim Four "Insufficient evidence." (Id. at 14.)

         B. Analysis

         1. Statute ...


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