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Allen v. Clarke

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

November 15, 2017

Terrence Javon Allen, Sr., Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          Anthony J. Trenga, United States District Judge

         Terrence Javon Allen, Sr., a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of convictions entered in the Circuit Court of Newport News. Case Nos. CR12-1340 through -1351, CR12-1542, CR12-1544, CR12-1546, CR12-1547. Before the Court is the respondent's Motion to Dismiss the petition.

         I. Background

         On November 19, 2014, following a jury trial, Allen was found guilty of eluding the police, aggravated maiming, robbery, attempted robbery, conspiracy to commit robbery, burglary while armed with a deadly weapon, three counts of abduction, and seven counts of unlawful use of a firearm. He was sentenced to serve 133 years in prison.

         Allen pursued a direct appeal before the Court of Appeals of Virginia, raising the following claims:

I. The trial court erred in denying his motion to strike fifteen of the counts against him where there was reasonable doubt that he committed the offenses.
II. The trial court erred in denying his motion to set aside the verdict where there was reason to believe the prosecutor had an impermissible ex parte contact with the alternate juror.
III. The trial court erred in denying his motion to dismiss all charges where his waiver of his right to counsel in the general district court was improperly disregarded.

         The petition for appeal was denied in aper curium order on September 8, 2015. Allen v. Commonwealth, R. No. 0093-15-1 (Sept. 8, 2015); Resp. Ex. 1. On November 10, 2015, petitioner's request for review by a three-judge panel was denied. Id. Petitioner sought further review by the Supreme Court of Virginia, and his petition for appeal was refused on July 14, 2016. Allen v. Commonwealth, R. No. 151742 (Va. July 14, 2016); Resp. Ex. 2.

         Meanwhile, on November 30, 2015, Allen filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the following claims:

A. His right to a speedy trial was violated.
B. He was denied his right to waive counsel and to represent himself.
C. The jury was tainted when the victim blurted out that petitioner had written to him from jail and offered to pay him off.
D. The trial court erred in failing to dismiss the indictments when the prosecutor failed timely to comply with discovery and inspection.
E. The trial court erred in failing to dismiss the indictments because his identification was invalid.

Resp. Ex. 3.

         On February 8, 2016, the Supreme Court of Virginia ordered that the petition be dismissed. Specifically, it determined that the portion of claim (1) where petitioner alleged that he was denied the right to represent himself was barred because that issue had been raised and decided on direct appeal and could not be re-asserted in a habeas corpus petition. The Court further found that Allen's remaining claims were non-jurisdictional and could have been raised at trial and on direct appeal and therefore were not cognizable in habeas corpus pursuant to Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974). Allen v. Commonwealth, R. No. 151837 (Va. Feb. 8, 2016); Resp. Ex. 4.

         In September, 2016, Allen filed a habeas corpus petition in the state trial court. In an Order entered on December 5, 2016, the petition was dismissed as successive pursuant to Va. Code § 8.01-654(B)(2), which bars consideration of all claims known to a petitioner at the time he filed his first application for habeas relief. Resp. Ex. 5. Respondent reports that Allen noticed an appeal of that Order to the Supreme Court of Virginia, Resp. Brief at 3, but independent research at the Case Status and Information website of the Supreme Court of Virginia failed to locate such an appeal.

         Allen then turned to the federal forum and timely filed the instant petition for relief pursuant to § 2254 on February 2, 2017, [1] raising the following claims:

1. The identification was overly and impermissibly suggestive.
2. He was denied his right to waive counsel and to represent ...

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