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Gallop v. Clarke

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

January 31, 2018

HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.


          Lawrence R. Leonard, United States Magistrate Judge

         This matter is before the Court on Petitioner Wesley Thomas Gallop, Jr.'s ("Petitioner") pro se Petition for a Writ of Habeas Corpus ("the Petition") filed pursuant to 28 U.S.C. § 2254, ECF No. 1, and Respondent Harold W. Clarke's ("the Respondent") Motion to Dismiss, ECF No. 14. The matter was referred for a recommended disposition to the undersigned United States Magistrate Judge ("undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. The undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that the Respondent's Motion to Dismiss, ECF No. 14, be GRANTED, and the Petition, ECF No. 1, and Amended Petition, ECF No. 7, be DENIED and DISMISSED WITH PREJUDICE.


         On March 26, 2011, first responders from the Norfolk Fire Department and Norfolk Police department responded to a house located on East Virginia Beach Boulevard in Norfolk, Virginia. ECF No. 15, attach. 3 at 3. Upon arrival, the first responders encountered the victim, Anthony McKinney ("the victim") lying in the driveway area of the house, suffering from multiple gunshot wounds. ECF No. 15, attach. 3 at 3. The victim had no pulse and was transported to Sentara Norfolk General Hospital where he was declared dead. An autopsy revealed that the victim expired due to four gunshot wounds, and at least three of which would have proven fatal. ECF No. 15, attach. 3 at 3-4. On or about March 22, 2012, Petitioner was arrested and held in Norfolk City Jail. ECF No. 15, attach. 12 ("Respondent's Exhibit L") at 1, ¶ 1. Shortly thereafter, B. Thomas Reed, Esq. ("Trial Counsel") was appointed to represent Petitioner. ECF No. 15, attach. 12 ("Respondent's Exhibit L") at 1, ¶ 1. On June 6, 2012, Petitioner was indicted on one count of first degree murder, one count of second degree murder, and two counts of use of a firearm in the commission of a felony. ECF No. 15, attach. 3 at 2. Prior to trial, the Commonwealth nolle prossed the second degree murder count and one count of use of a firearm. ECF No. 15, attach. 2 ("Respondent's Exhibit B") at 5. Beginning on February 28, 2013, Petitioner was tried before a jury in Norfolk Circuit Court. ECF No. 15, attach. 3 at 2.

         At trial, the evidence showed that on the evening of March 25, 2011, Petitioner, his girlfriend, Quinshala Frost ("Frost"), Petitioner's friend, Deandre Moore ("Moore"), and Moore's girlfriend, Dana Brown ("Brown") made plans to go out drinking and show off Petitioner's new Cadillac Escalade. ECF No. 15, attach. 3 at 4.[1] Upon attempting to enter a club, Petitioner and Moore were turned away so the group decided to go to a "selling party" at a house. A security guard working the front door of the party frisked Petitioner and denied him entry after finding a gun on Petitioner's person. ECF No. 15, attach. 3 at 5. Ultimately, Petitioner put the gun back into the Escalade and was permitted to enter the party. Sometime later, the victim went outside to talk to a friend and while standing on the curb, lost his balance and fell into Petitioner's Escalade. ECF No. 15, attach. 3 at 6. An argument between the victim, Moore, Frost, and Brown ensued about the victim bumping into the Escalade. Brown watched Petitioner remove something from underneath the front passenger seat, and began shooting the victim in the chest from less than five feet away. ECF No. 15, attach. 3 at 6-7. Petitioner, Frost, Moore, and Brown then jumped into the Escalade and sped away from the party, while Brown heard Petitioner saying "I shot him. I shot him." ECF No. 15, attach. 3 at 7. At the close of the Commonwealth's evidence (which included the testimony of sixteen (16) witnesses, including the eyewitness testimony of the selling party security guard, the victim's friend, Moore, Frost, and Brown, Petitioner moved to strike the evidence, which was denied by the trial court, and denied when Petitioner moved again at the close of all the evidence. ECF No. 15, attach. 3 at 2, 12-13. The jury found Petitioner guilty of second degree murder, in violation of Virginia Code § 18.2-32, and use of firearm in commission of a felony, in violation of Virginia Code § 18.2-53.1, and recommended that Petitioner be sentenced to thirty-eight (38) years of incarceration. ECF No. 1 at 15. On October 10, 2013, via a post-trial motion, Petitioner filed for the first time, a motion for a mistrial. Following a full evidentiary hearing on October 18, 2013, the trial court denied the same and imposed the verdict and sentenced Petitioner in accordance with the jury's recommendation. ECF No. 15, attach. 3 at 2. Accordingly, Petitioner is detained pursuant to a final judgment of the Norfolk Circuit Court entered on November 26, 2013. ECF No. 15 at 1, ¶ 1.

         Petitioner appealed his conviction to the Court of Appeals of Virginia on the grounds that the evidence was insufficient to support his conviction for second degree murder and that the trial court erred when it denied his request for a mistrial based on the Commonwealth's alleged failure to investigate the identity of an alleged eye-witness. ECF No. 15 at 1-2 (citing ECF No. 15, attach. 1 ("Respondent's Exhibit A")). In a per curiam opinion dated August 15, 2013, the Court of Appeals denied Petitioner's appeal. ECF No. 15, attach. 1. By Order dated January 23, 2015, the Supreme Court of Virginia refused to entertain Petitioner's further appellate endeavors. ECF No. 15, attach. 4 ("Respondent's Exhibit D").

         On September 17, 2015, Petitioner filed a petition for a writ of habeas corpus in the Norfolk Circuit Court, which the Norfolk Circuit Court dismissed on December 17, 2015. See ECF No. 15, attach. 5 ("Respondent's Exhibit E")); ECF No. 15, attach. 6 ("Respondent's Exhibit F"). Petitioner attempted to appeal the Norfolk Circuit Court's decision, which was refused by the Supreme Court of Virginia on August 3, 2016. ECF No. 15, attach. 7 ("Respondent's Exhibit G"); ECF No. 15, attach. 8 ("Respondent's Exhibit H"). On February 25 2016, Petitioner filed a Motion to Vacate in the Norfolk Circuit Court, alleging an invalid indictment, which was denied on March 8, 2016, and the Virginia Supreme Court refused an appeal of this decision. On January 10, 2017. See ECF No. 15 at 2 (citing ECF No. 15, attach. 9 ("Respondent's Exhibit P'); ECF No. 15, attach. 10 ("Respondent's Exhibit J")).

         Petitioner filed the instant § 2254 Petition for federal habeas relief on December 7, 2016, where he raised the following five grounds: (1) Petitioner's trial counsel was ineffective for failing to fully investigate Petitioner's case, including an exculpatory witness named "Pooh" who told investigators that she had seen someone besides Petitioner commit the murder; (2) the Commonwealth's Attorney failed to disclose exculpatory evidence by failing to provide the identity and/or contact information of "Pooh"; (3) Petitioner's trial counsel was ineffective for failing to properly impeach Moore's trial testimony after the Commonwealth's attorney permitted Moore to present false testimony regarding Moore's plea agreement, and Petitioner's trial counsel failed to move the Court to strike Moore's testimony or instruct the jury to disregard the same; (4) Petitioner's trial counsel was ineffective for failing to object to the Commonwealth's request that the jury be instructed on the elements of second degree murder, despite the fact the Court had granted the Commonwealth's motion to enter the indictment's charge of second degree murder nolle prosequi, while pursuing Petitioner's conviction for first degree murder; and (5) the evidence presented at trial was insufficient to support Petitioner's convictions, in light of the dearth of physical and forensic evidence linking Petitioner to the scene, and the biased and incredible testimony of Moore, whose testimony against Petitioner was motivated by Moore's desire to receive a favorable plea agreement. ECF No. 1 at 6-20. By Motion dated January 26, 2017, Petitioner requested the Court's permission to amend his petition to include an additional claim, which challenged the indictments as invalid and thereby divested the Norfolk Circuit Court of its jurisdiction over Petitioner's prosecution. ECF No. 7. On February 10, 2017, the Court granted Petitioner's Motion, and the claim alleged in Petitioner's Amended Petition (ECF No. 7) was included for the Court's review. See ECF No. 10.

         On March 1, 2017, the Respondent filed a Motion to Dismiss, a Rule 5 Answer, a Brief in Support of the Motion to Dismiss, and Roseboro Notice. ECF Nos. 13-16. Petitioner filed a Response on March 22, 2017, ECF No. 20, and a second Response on August 10, 2017, ECF No. 26. Therefore, the instant Petition and Motion to Dismiss are ripe for recommended disposition.


         A. Exhaustion

         Before addressing the merits of a federal habeas petition, the preliminary inquiry must be whether Petitioner appropriately exhausted his claims. Section 2254 allows a prisoner held in state custody to challenge his detention on the ground that his custody violates the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A state prisoner, however, must exhaust his available state remedies or demonstrate the absence or ineffectiveness of such remedies before petitioning for federal habeas relief in order to give "state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). Importantly, "[t]he burden of proving that a claim is exhausted lies with the habeas petitioner." Id. at 618. The exhaustion requirement is satisfied if the prisoner seeks review of his claim in the highest state court with jurisdiction to consider it through either direct appeal or post-conviction proceedings, see O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999), and the "essential legal theories and factual allegations advanced in the federal court [are] the same as those advanced at least once to the highest state court," Pruett v. Thompson, 771 F.Supp. 1428, 1436 (E.D. Va. 1991), affd, 996 F.2d 1560 (4th Cir. 1993). Here, Petitioner raised all but one of the present claims in his state habeas petition before the Supreme Court of Virginia or on direct appeal. Specifically, Claims 1, 3, and 4 were exhausted because they were presented to and considered by the Virginia Supreme Court on appeal from the trial court's dismissal of Petitioner's habeas petition. See ECF No. 15, attach. 7 ("Respondent's Exhibit G") at 3, 5. See also ECF No. 15, attach. 8 ("Respondent's Exhibit H"). Claim 5 was raised on direct appeal. ECF No. 15, attach. 2 ("Respondent's Exhibit B") at 10-11. Additionally, as discussed in greater detail in Part II.E, infra, the single claim raised in the Amended Petition (ECF No. 7) was exhausted on direct appeal. ECF No. 20 at 93.

         With respect to Claim 2, the Court finds that this specific assignment of error has not been presented in state court. Rather, on appeal, Petitioner raised a related, but different claim wherein Petitioner alleged the police erred by failing to obtain Pooh's identity. ECF No. 15, attach. 2 at 10-11. Here, Petitioner appears to argue that the police and/or Commonwealth's Attorney knew Pooh's true identity, but deliberately failed to disclose the same to Petitioner and Petitioner's counsel after identifying "Pooh" in the prosecution's provision of supplemental discovery on or about November 26, 2012. ECF No. 1 at 36-38. Because Claim 2 has never been presented in state court, Petitioner has defaulted on this claim, and is procedurally barred from the Court's consideration pursuant to the instant Petition. See Teague v. Lane, 489 U.S. 288 (1989). See also Virginia Code §§ 8.01-654(A)(2) (setting forth Virginia's Statute of Limitations); 8.01-654(B)(2) (successive).

         Additionally, this Court notes that the Respondent concedes that with the exception of Claim 2, all of Petitioner's claims have been properly exhausted. See ECF No. 15 at 3. Accordingly, the undersigned FINDS that Petitioner has properly exhausted his state remedies with respect to Claims 1, 3, 4, and 5.

         B. Standards of Review

         28 U.S.C. § 2254(d)

         With respect to those claims that were adjudicated by the State court on their merits, habeas relief is warranted only if Petitioner can demonstrate that the adjudication of his claims by the State courts "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 "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). Thus, federal habeas relief is precluded, so long as "fair-minded jurists could disagree" on the correctness of the State court's decision. Harrington v. Richer, 562 U.S. 86, 102 (2011). "If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA[2], § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings." Harrington v. Richer, 562 U.S. 86, 102 (2011) ("It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.") (citing Felker v. Turpin, 518 U.S. 651, 664 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244)). In other words, "AEDPA prohibits federal habeas relief for any claim adjudicated on the merits in state court, unless one of the exceptions listed in § 2254(d) obtains." Premo v. Moore, 562 U.S. 115, 121 (2011).

         In Williams v. Taylor, the Supreme Court explained that the "exceptions" encapsulated by § 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. 529 U.S. 362, 404-05 (2000). A federal habeas court may issue the writ under the "contrary to" clause if the State court applies a rule different from the governing law set forth in Supreme Court cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Id. at 405-06. This Court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from Supreme Court decisions, but unreasonably applies it to the facts of the particular case. Williams v. Taylor, 529 U.S. 362, 407-08 (2000). See also Woodford v. Visciotti, 537 U.S. 19, 27 (2002) ("The federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a state-court decision is objectively unreasonable."). "The focus of the [unreasonable application] inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002).

         In making this determination under Section 2254(d)(1), the Court "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011) ("Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that 'resulted in' a decision that was contrary to, or 'involved' an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court."). Thus, it is this Court's obligation to focus "on the state court decision that previously addressed the claims rather than the petitioner's freestanding claims themselves."[3] McLee v. Angelone, 967 F.Supp. 152, 156 (E.D. Va. 1997). See also Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (explaining that the Court independently reviews whether that decision satisfies either standard). Additionally, in undertaking such review, this Court is mindful that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

         Ineffective ...

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