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Jones v. Clarke

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

October 18, 2017

ANTWOINE MCKINLEY JONES, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad United States District Judge

         Antwoine McKinley Jones, a Virginia inmate proceeding by counsel, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a final order by the Danville City Circuit Court. Respondent filed a motion to dismiss, and Jones responded, making the matter ripe for disposition. After review of the record, the court concludes that the petition must be dismissed.

         I. Background

         After a bench trial, the Danville City Circuit Court found Jones guilty of forcible sodomy, indecent liberties with a minor with whom he had a custodial relationship, attempted rape, attempted incest, [1] and object sexual penetration. The circuit court sentenced Jones to ten years as to each conviction, with five years suspended on each count. Jones appealed, arguing that the testimony of the victim, who was ten years old at the time she testified, was "inherently incredible" for various reasons, but the Court of Appeals of Virginia denied his petition. Jones then raised a single claim of unreliable testimony in the Supreme Court of Virginia, but the court declined review.

         After his direct review proceedings ended, Jones filed a habeas petition in the Supreme Court of Virginia, raising six ineffective assistance of counsel claims. On January 12, 2009, the court issued "a limited grant of the writ habeas corpus" as to Jones's fourth claim: counsel was ineffective for failing to object to the court finding him guilty of incest when he was charged with attempted incest, remanding the case to the circuit court to correct the conviction order and for a new sentencing hearing as to the attempted incest conviction. Jones v. Warden, No. 081315, slip op. at 2 (Va. Cir. Ct. Jan. 12, 2009). The Supreme Court of Virginia denied all remaining claims on the merits.

         On April 21, 2009, after the Supreme Court of Virginia's limited grant of habeas relief, but before the resentencing, Jones filed a federal habeas petition raising three claims of ineffective assistance and two claims challenging the sufficiency of the evidence.

         On June 22, 2009, before the state court re-sentenced Jones on his attempted incest conviction, the Commonwealth moved the circuit court to re-sentence Jones on his indecent liberties conviction because the sentence originally imposed exceeded the statutory maximum.[2]On July 28, 2009, the Danville City Circuit Court entered a nunc pro tunc order effective February 27, 2006, (the entry date of the original sentencing order) correcting the attempted incest conviction and reducing the associated sentence to five years, with no time suspended.

         Thereafter, the circuit court held an additional re-sentencing hearing as to both the attempted incest and indecent liberties convictions. On December 15, 2009, the court reimposed a five-year sentence on the attempted incest conviction and reduced the indecent liberties conviction to five years, with two-and-a-half years suspended. Jones appealed, but on December 2, 2010, the Court of Appeals of Virginia denied his appeal, and on July 11, 2011, the Supreme Court of Virginia refused his petition.

         Meanwhile, on March 19, 2010, the federal district court denied Jones habeas relief, [3]which the United States Court of Appeals for the Fourth Circuit affirmed.[4]

         On August 20, 2015, Jones filed a second state habeas petition in the Danville City Circuit Court, which was denied as procedurally defaulted under Va. Code § 8.01-654(B)(2) and without merit. The Supreme Court of Virginia denied Jones's appeal.[5]

         II. Current Petition

         On February 15, 2017, Jones filed the instant petition, raising three claims:

         1. The Commonwealth failed to disclose exculpatory, impeachment and other evidence from the Guilford[6] records;

         2. Resentencing counsel was ineffective for failing to move for a new trial on all charges based on the prosecutor's failure to disclose exculpatory evidence prior to trial; and

         3. Trial counsel was ineffective for failing to request a subpoena for the Guilford records.

         This matter is now before the court on Respondent's motion to dismiss. Respondent has conceded that Jones' petition is properly exhausted and timely. Further, the Respondent assumes without conceding that Jones's petition is not ...


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