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Kelley v. Clarke

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

December 8, 2017

DAVID WAYNE KELLEY, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Norman K. Moon Senior United States District Judge

         David Wayne Kelley, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Rockingham County Circuit Court. Respondent filed a motion to dismiss Kelley's § 2254 petition, and Kelley responded, making the matter ripe for disposition. After review of the record, I grant the motion to dismiss.

         I.

         On April 9, 2013, Kelley was convicted in the Rockingham County Circuit Court of ten counts of possession of child pornography, one count of distribution of child pornography, and one count of distribution of child pornography, second offense, all in violation of Va. Code § 18.2-374.1:1. The circuit court sentenced him to fourteen years and seventy-two months' imprisonment. Kelley appealed, but the Court of Appeals of Virginia denied his petition. Kelley appealed again, but the Supreme Court of Virginia affirmed his convictions.

         On April 8, 2016, Kelley filed a state habeas petition in the Rockingham County Circuit Court, but the court denied relief. The Supreme Court of Virginia dismissed his habeas appeal on procedural grounds.

         II.

         On June 5, 2017, Kelley filed the present petition, alleging the same five claims as in his state habeas petition:

1. Officers violated his Miranda rights;
2. Forcing the jury to view child pornography videos violated his Seventh Amendment right to an impartial jury;
3. There was insufficient evidence to prove distribution of child pornography;
4. His Fifth, Sixth, and Eighth Amendment rights were violated when the trial court denied his motion to suppress evidence; and
5. Counsel was ineffective for failing to request proper jury instructions. Kelley's petition is timely. See 28 U.S.C. § 2244(d)(1)(A).

         III.

         “[A] federal court may not grant a writ of habeas corpus to a petitioner in state custody unless the petitioner has first exhausted his state remedies by presenting his claims to the highest state court.” Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). To meet the exhaustion requirement, a petitioner “must have presented to the state court both the operative facts and the controlling legal principles.” Kasi v. Angelone, 300 F.3d 487, 501-02 (4th Cir. 2002) (internal quotation marks and citation omitted). “A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court.” Baker, 220 F.3d at 288 (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)).

         Kelley properly exhausted Claims 1 through 4 by presenting them to the Virginia Supreme Court on direct review. However, Claim 5 is simultaneously exhausted and defaulted because Kelley failed to perfect his state habeas appeal to the Virginia Supreme Court under Va. Sup. Ct. R. 5:17(c)(1)(i). He cannot return to state court because his direct appeal is final and any additional state habeas proceeding would be both untimely and successive. See Va. Code §§ 8.01-654(A), 8.01-654(B) (A petitioner must file a writ of habeas corpus within one year of the conclusion of the direct review process and include all allegations the facts of which are known to petitioner at the time of filing. A habeas petition “shall certify that the petitioner has filed no prior habeas corpus petitions attacking the conviction or probation revocation.”).[1] Thus, Claim 5 is exhausted but defaulted under Baker.

         “If a claim is defaulted, then petitioner must fail on that claim unless he can show that cause and prejudice or a fundamental miscarriage of justice might excuse his default.” Bell v. True, 413 F.Supp.2d 657, 676 (W.D. Va. 2006) (citing Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998)). The “cause” prong requires a petitioner to demonstrate that there were “objective factors, ” external to his defense, which impeded him from raising his claim at an earlier stage. Murray v. Carrier, 477 U.S. 478, 488 (1986). The “prejudice” prong requires a petitioner to show that the alleged constitutional violation worked to his actual and substantial disadvantage, infecting his entire trial with error of a constitutional magnitude. Id. at 495. “[T]he ‘cause and prejudice' test is framed in the conjunctive, the absence of cause makes unnecessary an inquiry into ...


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