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Warwick v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

October 16, 2017

HAROLD W. CLARKE, Respondent.

          Michael G. Warwick, Pro Se Petitioner

          Robert H. Anderson, III, Senior Assistant Attorney General, Richmond, Virginia, for Respondent.


          James P. Jones United States District Judge

         In this pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, the petitioner Michael Warwick, a Virginia inmate, challenges the validity of his confinement on a judgment by the Nelson County Circuit Court. After review of the record, I conclude that the respondent's Motion to Dismiss must be granted, because Warwick's petition is partially procedurally barred and ultimately without merit.

         I. Background.

         On August 16, 2013, Warwick was recovering from spinal surgery at the Lovingston Health and Rehabilitation Center, a nursing home facility. Lakisha Townes, the director of discharge at the facility, entered Warwick's room to discuss his scheduled discharge on August 18.[1] Townes also told Warwick that the center intended to move him into a different room. Even after staff offered to help pack, Warwick became increasingly agitated and began cursing and shoved Townes. Townes left the room and a nurse called 911. While waiting for the police, nurses continued trying to calm Warwick.

         When Deputy Sheriff Brooks arrived, Warwick was pacing back and forth between his room and the nursing station. After attempting to speak to Warwick multiple times, Brooks finally placed a hand on Warwick's arm to prevent him from moving. Warwick swung his arm backwards to break free of Brooks' grasp and threw several punches, striking Brooks in the face. Brooks informed Warwick that he was under arrest, then disengaged and waited for backup.

         Shortly after, Sergeant Davis responded to the call, and the two officers moved to arrest Warwick. Davis and Brooks attempted to gently force Warwick to the floor, but a violent struggle ensued and Warwick struck Brooks in the chest and face and Davis in the face. Brooks testified that Warwick struck him eight or nine times but that he did not incur any lasting injuries. At some point during the scuffle, Warwick also kicked Davis in the face, breaking the sergeant's glasses. The struggle on the floor lasted approximately two to three minutes. Neither officer knew what medications Warwick was taking nor his overall psychological state - they only knew that he appeared extremely agitated.

         Warwick testified that he remembered taking painkillers and being asked by the nurses to move several times, but that he did not recall Brooks asking him to calm down or put his arms down. He did recollect Brooks grabbing him by both arms and pushing his back into an ice machine, which Warwick said was extremely painful because he still had stitches in his back. He claimed that he did not understand why Deputy Brooks was there, and that he had approached the nurses' station to request that they empty blood out of his medical pouch. He asserted that he complied with the officers' demand to put his arms behind his back, but that he was hurt badly when Brooks and Davis wrestled him to the ground. He testified that he did not remember much of the struggle due to his medication, but that he knew that he did not intend to strike Brooks or Davis. Warwick described the interaction as an example of police brutality.

         The jury convicted Warwick and the Nelson County Circuit Court sentenced him to six years in prison. Warwick appealed, but both the Court of Appeals of Virginia and the Supreme Court of Virginia denied his petitions. Warwick did not raise any of his present allegations during his direct appeals; however, he did raise the claims in a habeas petition in the Supreme Court of Virginia, which was denied.

         On January 19, 2017, Warwick filed a Petition for a Writ of Habeas Corpus in this court, alleging the following:

1. Warwick's due process rights were violated because the circuit court order book did not contain an entry that the grand jury had properly indicted petitioner, as required under Virginia law;
2. Trial counsel was ineffective for failing to inspect the grand jury record, thus not realizing that the record was defective; and
3. Trial counsel was ineffective for not interviewing Warwick's surgeon and not reviewing or subpoenaing Warwick's medical chart to show that Warwick's physical health was such ...

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