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Dejesus v. Clarke

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

January 19, 2018

Angel Reyes DeJesus a/k/a Jason Martinez, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          LIAM O' GRADY UNITED STATES DISTRICT JUDGE.

         Angel Reyes DeJesus, a Virginia inmate, initially filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 pro se, to challenge a life sentence imposed in 1998 for his conviction of first degree murder in the Richmond City Circuit Court. Counsel subsequently noticed an appearance on behalf of petitioner. [Dkt. No. 7] On April 5, 2017, respondent filed a Rule 5 Answer and a Motion to Dismiss the petition with a supporting brief. [Dkt. 8 -10] On April 22, 2017, petitioner submitted a reply to the Motion to Dismiss with a supporting brief [Dkt. No. 13-14] Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss the petition must be granted.

         I. Procedural Background

         In 1998, a jury convicted DeJesus of first degree murder and use of a firearm in the commission of a felony in the death of Diedre Mikos. DeJesus was seventeen (17) years old when he committed the offenses. The trial court sentenced DeJesus to life in prison for the murder conviction pursuant to Va. Code §16.1-272 and to three additional years for the firearms offense. Case NosCR97-1802 and-1803.

         DeJesus took a direct appeal, arguing that the evidence was insufficient to sustain the convictions and that the court erred at sentencing in considering certain evidence regarding his criminal history. The Court of Appeals of Virginia denied the petition for appeal on July 22, 1998, sub norn, Martinez v. Commonwealth, R. No. 0267-98-2 (Va. Ct. App. July 22, 1998); Resp. Ex. A. The Supreme Court of Virginia refused a second-tier appeal on January 11, 1999. Martinez v. Commonwealth, R. No. 982022 (Va. Jan. 11, 1999).

         In June, 2001, petitioner, through counsel, filed a pleading captioned as a Motion to Vacate Pursuant to Baker v. Commonwealth in the Richmond Circuit Court, alleging that the court lacked jurisdiction to try him as an adult because his father was not notified of the initiation of criminal proceedings. Case Nos. F-97-1802 through -1804. The motion was denied in a Decision and Order dated October 30, 2001, on the holdings that (1) any Baker violation would not have rendered petitioner's convictions void, but merely voidable, and (2) the Motion to Vacate was filed untimely and the claim was barred. DeJesus appealed that decision to the Supreme Court of Virginia, and it refused the appeal on July 9, 2002. (Record No. 020260).

         Respondent reports, and the Case Status and Information website of the Supreme Court of Virginia confirms, that DeJesus filed a counseled petition for a writ of habeas corpus in that Court on July 16, 2003 which was dismissed as untimely pursuant to Va. Code §8.01-654(A)(2) on December 5, 2003. Martinez v. Warden, Sussex II Corr. Center. R. No. 031593.

         On April 21, 2014, DeJesus filed a "Motion to Vacate Life Sentence" in the Richmond Circuit Court, asserting that his sentence violates the rule announced by the United States Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012). Because petitioner used his original 1997 criminal case numbers in filing the motion, the court dismissed the action as untimely pursuant to Va. Sup. Ct. Rule 1:1, which provides that "[a]ll final judgments, orders and decrees ... shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer." Apparently, petitioner did not appeal that decision. See Pet., Dkt. No. 1 at p. 5.[1]

         DeJesus next turned to the federal forum and filed this action for § 2254 relief by placing his petition into his prison's mailing system on January 16, 2017. Pet. at 15; see Houston v. Lack, 487 U.S. 266 (1988). He makes the sole claim that the life sentence based on a conviction of murder imposed while he was juvenile amounts to cruel and unusual punishment in violation of the Eighth Amendment because it does not comport with Montgomery v. Louisiana, ___U.S. ___, 136 S.Ct. 718 (2016) and Virginia's geriatric release provision is "inadequate." Pet. at 6.

         II. Facts

         In its opinion upholding DeJesus' conviction on direct appeal, the Court of Appeals of Virginia described the evidence as follows:[2]

.... Rachel Carter arranged for [DeJesus] to sell cocaine to Katherine Dalrymple at Carter's home. The victim, Diedre Mikos, lived with Carter. On the day of the meeting, Dalrymple weighed [DeJesus'] drugs and told him that the weight was off by "about four grams." [DeJesus] agreed to make up the deficiency, but needed a ride to the area of Floyd and Granby streets. Carter drove [DeJesus] to that area. [DeJesus] told Carter to stay in the car. After about ten minutes, [DeJesus] returned to the car and told Carter to wait another twenty-five minutes for him because he had to cook the crack cocaine.
However, [DeJesus] returned to Carter's home without her, and told Dalrymple that Carter had gone to the store to buy cigarettes.
[DeJesus] and Dalrymple went into the living room. Meanwhile, Mikos and Brian Fisher were in the kitchen making pizza. From the kitchen window, Mikos saw someone in the backyard "creeping" around her car. Fisher let his dog out and gave the command to attack. The dog caught the man by the arm, but the man "shook him off." Once the dog returned to the house, [DeJesus] became more nervous after learning the dog attacked the man. [DeJesus] and Dalrymple returned to the living room. Dalrymple began to weigh her marijuana that she wanted to exchange for some of [DeJesus'] cocaine. At this point, [DeJesus] pulled out a gun, put it on Dalrymple's head, and demanded all her ...

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