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Albritton v. Clarke

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

February 1, 2018

DEVINCHE JAVON ALBRITTON, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION

          LAWRENCE R. LEONARD UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Petitioner DeVinche Javon Albritton'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. 8. 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. 8, be GRANTED, and the Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE.

         LFACTUAL AND PROCEDURAL BACKGROUND

         On September 6, 1999, the victim contacted Virginia Beach Police and reported that a stranger had abducted and raped her as she walked from her residence to work. ECF No. 1, attach. 1 at 1. According to the factual findings of the Virginia Court of Appeals,

After the incident, the victim continued to walk to work and she failed to report the incident to police officers parked in a nearby parking lot. The victim testified that, after [Petitioner] raped her, he asked to see her identification, he recited her address out loud to her, told her that he knew where she lived, and told her not to tell anyone. The victim explained that she did not report the incident to the nearby police officers because she was afraid as she did not know if [Petitioner] was watching her and he knew where she lived. The victim testified she walked to work because she knew she would be safe there. Upon arriving at work, the victim immediately told co-workers what had happened and they called the police.

         ECF No. 1, attach. 1 at 5. The victim went to the hospital and a sexual assault nurse examiner ("SANE")[1] named Kathryn McDonald ("Nurse McDonald") examined the victim and collected biological samples from the victim. ECF No. 1, attach. 1 at 1, 3. At that time, the State laboratory policy was to only develop DNA profiles from biological evidence when there was a known suspect. ECF No. 1, attach. 1 at 1. Because the victim did not know her rapist, no suspect was developed. The matter remained unsolved until January 2010, when the "cold case" was assigned to an investigator and a subsequently performed DNA analysis indicated that Petitioner could not be eliminated as a possible contributor of the samples. ECF No. 1, attach. 1 at l.

         On November 1, 2010, Petitioner was charged in Virginia Beach Circuit Court by grand jury indictment with one count of Abduction with the Intent to Defile, in violation of Virginia Code §§ 18.2-48 and 18.2-10; one count of Rape, in violation of Virginia Code § 18.2-61; and one count of Forcible Sodomy, in violation of Virginia Code § 18.2-67.1. An arrest warrant was issued and executed on November 17, 2010 at the Lawrenceville Correctional Facility where he was serving a sentence for his April 25, 2005 conviction in the Virginia Beach Circuit Court for Rape and Abduction. Circuit Court R. at 24 (Commonwealth's January 19, 2011 Notice). On November 18, 2010, Petitioner came before the Virginia Beach Circuit Court and was found to be indigent, but was permitted to exercise his right to self-representation, so the Public Defender's Office was appointed as standby counsel.

         Petitioner's first trial occurred between March 26 and March 28, 2012, and Petitioner represented himself. At the conclusion of the Commonwealth's case, the Circuit Court acquitted Petitioner of the charge of Forcible Sodomy, but denied Petitioner's Motion to Strike the Commonwealth's evidence as to the charge of Abduction with the Intent to Defile. Virginia Beach Circuit Court R. at 262-65. On March 28, 2012 the jury announced in open court that it was unable to reach a verdict as to the remaining charges (Rape and Abduction with Intent to Defile) and was discharged. Virginia Beach Circuit Court R. at 261, 265. The second trial commenced on or about April 22, 2013 and lasted until April 24, 2013. Again, Petitioner represented himself with the assistance of standby counsel. On April 24, 2013, the jury found Petitioner guilty of both Rape and Abduction with the Intent to Defile. Thereafter, the Circuit Court accepted the jury's sentencing recommendation and sentenced Petitioner to life imprisonment for Rape and thirty (30) years for the Abduction with Intent to Defile, plus a Twenty-five Thousand Dollar ($25, 000.00) fine. ECF No. 10 at 1, ¶ 1. Accordingly, Petitioner is detained pursuant to a final judgment of the Virginia Beach Circuit Court entered on May 1, 2013. ECF No. l, ¶ l.

         Petitioner appealed his convictions to the Court of Appeals of Virginia on the following five grounds: (1) that the trial court erred in refusing to admit a June 1, 2011 Order granting Petitioner leave to obtain a large scale aerial map; (2) that the trial court erred in refusing to allow Petitioner to use the June 1, 2011 Order as a means of refreshing a witness' recollection; (3) that the trial court erred in denying Petitioner's Motion in Limine to exclude the testimony of Nurse McDonald; (4) that the trial court erred in allowing a witness offered under the "recent complaint" statute to testify beyond the scope of the rule; and (5) that the trial court erred in refusing Petitioner's proffered jury instruction on the issue of the victim's credibility. ECF No. 1, attach. 1. Gregory K. Pugh, Esquire, ("Appellate Counsel") was initially appointed as appellate counsel for Petitioner, but shortly thereafter Appellate Counsel was "directed to file a motion to withdraw as counsel in that [Petitioner] desired to represent himself." ECF No. 10, attach. 1 at ¶¶ 1, 6. See also ECF No. 2 at 11 ("However, shortly after sentencing, [Petitioner] was transported back to the Virginia Department of Corrections, Lawrenceville Corr. Center, prompting him to request Mr. Pugh to file a Motion to Withdraw from his case, and that he filed his own motion to represent himself on Direct appeal."). Notwithstanding Petitioner's instruction that Appellate Counsel withdraw his representation, Petitioner "continued to 'direct' [Appellate Counsel] in regards to the content of his petitions and briefs," and Appellate Counsel "raised and argued each and every issue that was even remotely properly preserved at the trial court." ECF No. 10, attach. 1 at ¶¶ 6-8. See also ECF No. 2 at 11-12 ("Mr. Pugh thereafter prepared and filed Albritton's Petition for Appeal, wherein counsel raised a total of five assignments of error."); ECF No. 2 at 13 ("Thereafter, on May 16, 2014, Appellate Counsel Pugh filed Albritton's Petition for Appeal to the Virginia Supreme Court...").

         A single Court of Appeals jurist denied Petitioner's appeal on January 15, 2014, ECF No. 1, attach 1, and a three judge panel of the same court also denied the same on April 15, 2014, ECF No. 10 at 2, ¶ 3. Petitioner also filed a petition for appeal in the Supreme Court of Virginia, which was denied on January 7, 2015, as was a petition for rehearing. ECF No. 1, attach. 2; ECF No. 1, attach. 3. On February 17, 2016, Petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, wherein Petitioner raised substantially all of the claims raised in the instant Petition, which the Supreme Court of Virginia denied on November 18, 2016. ECF No. 1, attach. 4.

         Petitioner filed the instant pro se § 2254 Petition for federal habeas relief on December 23, 2016, wherein he raised the following nine grounds: (1) that the trial court wrongly disallowed materials to refresh a witness's memory; (2) that appellate counsel was ineffective for not properly arguing that the trial court abused its discretion with respect to allegation (1); (3) That the Commonwealth's expert witness gave inadmissible testimony; (4) that the Commonwealth failed to turn over a copy of Virginia's SANE protocol; (5) that Petitioner's appellate counsel was ineffective for not arguing the matter set forth in allegation (4); (6) that the Commonwealth wrongly introduced hearsay evidence; (7) that the trial court wrongly denied Petitioner's proffered jury instructions that would have supported his defense theory; (8) that Petitioner's appellate counsel was ineffective for not raising the matters set forth in allegation (7); and (9) that cumulative error violated Petitioner's right to a fair trial. ECF No. 2 at 1-2.

         On March 20, 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. 8-10. Petitioner filed a Response on May 12, 2017. ECF No. 15. Therefore, the instant Petition and Motion to Dismiss are ripe for recommended disposition.

         II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         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." Breardv. 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, ll\ F.Supp. 1428, 1436 (E.D. Va. 1991), affd, 996 F.2d 1560 (4th Cir. 1993). Here, Petitioner raised all of the present claims in his state habeas petition before the Supreme Court of Virginia. See ECF No. 1, attach. 4. Additionally, this Court notes that the Respondent concedes that all nine of Petitioner's current claims have been properly exhausted. See ECF No. 10 at 2, ¶ 3. Accordingly, the undersigned FINDS that Petitioner has properly exhausted his state remedies with respect to Claims 1-9 of the Petition.

         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. Richter, 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. Richter, 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 Assistance of Counsel

         Here, as in Premo, because there is no allegation that the State courts decided Petitioner's State habeas "differently than th[e U.S. Supreme] Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S. 362, 413 (2000), the relevant exception is "permitting relitigation where the earlier state decision resulted from an 'unreasonable application of clearly established federal law" and "[t]he applicable federal law consists of the rules for determining when a criminal defendant has received inadequate representation as defined in Strickland," Premo v. Moore, 562 U.S. 115, 121 (2011) (citing Harrington v. Richter, 562 U.S. 86, 100 (2011); 28 U.S.C. § 2254(d)(1)). See also Strickland v. Washington, 446 U.S. 668 (1984). Generally, to have been entitled to habeas relief in State court for ineffective assistance of counsel claims under the Sixth Amendment, Petitioner had to show both that his defense counsel provided deficient assistance, and that he was prejudiced as a result of counsel's deficiency. Strickland v. Washington, 446 U.S. 668, 700 (1984) (conceptualizing the inquiry as two required prongs: a deficiency prong and a prejudice prong). First, to establish deficient performance, Petitioner was required to show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 446 U.S. at 688-89 (holding that there is a strong presumption that trial counsel provided reasonable professional assistance). Second, Petitioner was also required to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 687, 693- 94 (holding that counsel's errors must be "so serious as to deprive the defendant of a fair trial," and that a petitioner must "show that the errors had some conceivable effect on the outcome of the proceeding").

         The United States Supreme Court summarized the high bar faced by petitioners in a federal habeas proceeding where a petitioner's Sixth Amendment ineffective assistance of counsel claims were previously rejected by the State court:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both 'highly deferential,' . . . and when the two apply in tandem, review is 'doubly' so ... . The Strickland standard is a general one, so the range of reasonable applications is substantial. . . . Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Premo v. Moore, 562 U.S. 115, 122-23 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984); Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009))) (internal citations omitted). See also Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) ("Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard ... Mirzayance's ineffective-assistance claim fails.") (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per curiam)).

         Additionally, "[d]ue process of law also requires that a defendant receive effective assistance of counsel on direct appeal," thus, "[a]s with trial counsel, effectiveness of appellate counsel is evaluated under the two prongs of Strickland." Beyle v. United States, 269 F.Supp.3d 716, 727 (E.D. Va. 2017) (citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); Smith v. Robbins, 528 U.S. 259, 285 (2000)) (internal citations omitted). Therefore, the Supreme Court has held that when considering the "effectiveness of appellate counsel, a court must evaluate whether counsel failed to raise 'a particular nonfrivolous issue [that] was clearly stronger than issues that counsel did present' on direct appeal." Beyle v. United States, 269 F.Supp.3d 716, 727 (E.D. Va. 2017) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). "However, appellate counsel 'need not (and should not) raise every nonfrivolous issue.' . . . Accordingly, although 'it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim .. . it is difficult to demonstrate that counsel was incompetent.'" Beyle v. United States, 269 F.Supp.3d 716, 727 (E.D. Va. 2017) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000); Jones v. Barnes, 463 U.S. 745, 752-53 (1983) ("A brief that raises every colorable issue runs the risk of burying good arguments.")) (internal citations omitted). Regarding Strickland's prejudice prong as applied to appellate counsel, "a petitioner must show a reasonable probability that, but for [appellate] counsel's unprofessional errors, his appeal would have been successful." Beyle v. United States, 269 F.Supp.3d 716, 727 (E.D. Va. 2017) (citing Smith v. Robbins, 528 U.S. 259, 285-86, 288 (2000)).

         With these standards in mind, the undersigned now turns to the merits of the Petition.

         C. Facts and Findings of Law

         1. Claim 1

         In Claim 1, Petitioner alleges that the Virginia Beach Circuit Court ("the Trial Court") erroneously prevented Petitioner from using a June 1, 2011 Circuit Court Order to refresh a witness' recollection. See ECF No. 2 at 1, 15-17. The Virginia Court of Appeals describes part ...


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