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McKay v. Clarke

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

January 18, 2018

ALONZO ALEXANDER McKAY, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          REPORT AND RECOMMENDATION

          Roderick C. Young United States Magistrate Judge.

         Alonzo Alexander McKay, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (ECF No. I).[1] The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Respondent has moved to dismiss. (ECF No. 10.) McKay has replied. (ECF No. 16.) For the reason set forth below, it is RECOMMENDED that the Motion to Dismiss be GRANTED.

         A. McKay's Claims

         McKay demands relief upon the following grounds:

         Claim One: "Judicial Misconduct." (§ 2254 Pet. 5.)

         Claim Two: "Prosecutorial Misconduct." (Id. at 6.)

         Claim Three: "Ineffective Assistance of Counsel." (Id. at 7.)

         McKay does not supply facts in support of the above claims, but instead directs the Court to "see attached Memorandum." (See, e.g., id.) In the attached Memorandum (ECF No. 1, at 11-21), McKay fails to supply any supporting facts for Claims One and Two.

         A federal court may only grant a petition for a writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution...." 28 U.S.C. § 2254(a). A petition for a writ of habeas corpus must specify the grounds for relief. Rules Governing Section 2254 Cases, Rule 2(c). The petition must also state, under penalty of perjury, the facts that support each ground for relief. Id. The petitioner must make specific factual allegations in the petition that would entitle him to habeas corpus relief if they are true. Jones v. Polk, 401 F.3d 257, 269 (4th Cir. 2005); see Adams v. Armontrout, 897 F.2d 332, 333-34 (8th Cir. 1990). McKay's conclusory claims of judicial and prosecutorial misconduct are subject to summary dismissal. See Sanders v. United States, 373 U.S. 1, 19 (1963) (finding denial of § 2255 motion appropriate where it "stated only bald legal conclusions with no supporting factual allegations")-[2]Accordingly, it is RECOMMENDED that Claims One and Two be DISMISSED.

         In Claim Three, McKay contends that he was denied the effective assistance of counsel when his counsel, David W. Cassidy, "failed to communicate a plea offer from the prosecution." (ECF No. 1, at 17.) Further, review of McKay's habeas submissions reflect that McKay does not assert that Cassidy totally failed to communicate the prosecution's plea offer, but that Cassidy failed to somehow accurately convey the prosecution's plea offer:

Petitioner argues that the proposed plea, offered by the prosecution, was emailed to . .. Cassidy advising him that the petitioner could (i) plead to Burglary and [the prosecution would] merge the GL (Grand Larceny) into that; (ii) [the prosecution would] not object to [petitioner] being screened for programs and will not object to him being sent to the Behavior Modification Program if he qualifies; and (iii) [the prosecution would] also cap [petitioner's] sentence at the high end of the guidelines.
However, Cassidy, not the petitioner, rejected the proposed plea based on the miscalculated guidelines. Additionally, the record is clear that Cassidy had never shown petitioner the proposed plea offer in person, but would only advise him of the miscalculations by phone. The plea had a fixed expiration date noting that the "[prosecution would] need to know an answer for this by Friday at 4 PM."

(ECF No. 1, at 17-18 (footnote omitted) (alterations in original).) As explained more fully below, McKay fails to demonstrate that Cassidy inaccurately conveyed the substance of the plea offer and fails to demonstrate that he was willing to accept the plea offer at the time the offer was available. Thus, it is RECOMMENDED that Claim Three be DISMISSED because McKay fails to demonstrate deficiency of counsel or resulting prejudice.

         B. Applicable Constraints Upon Federal Habeas Review

         To obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") further circumscribes this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim:

         (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

         (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has emphasized that the question "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

         C. Trial and Direct Appeal

         McKay was convicted of statutory burglary and grand larceny for the theft of a safe in the Circuit Court for the City of Suffolk ("Circuit Court") and sentenced to twenty years of imprisonment. See McKay v. Commonwealth, No. 2185-11-1, at 1 (Va. Ct. App. May 9, 2012). On appeal, McKay did "not contest that he stole the safe. Instead, he argue[d] he 'entered with permission and within the scope of his employment and there was no breaking or illegal entry.'" Id. at 2. ...


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