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Bowden v. Clarke

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

February 8, 2018

ANTOINE LORENZO BOWDEN, 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 Antoine Lorenzo Bowden'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. 7. The matter was referred for a recommended disposition to the undersigned United States Magistrate Judge ("the 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. 7, be GRANTED, and the Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In the Circuit Court for the City of Chesapeake, following a jury trial that began on July 8, 2013 and ended on July 11, 2013, Petitioner was convicted of one count of First Degree Murder and one count of Use of a Firearm in the Commission of a Felony. ECF No. 9 at 1, ¶ 1. The factual findings of the Virginia Court of Appeals provides the following summary of the evidence presented at trial:

So viewed, the evidence proved that on August 13, 2011, the victim and his friend, Ameena Scott, attended a party at Erika Sanders's apartment. The victim was the father of two of Sanders's children, and [Petitioner] was the current boyfriend of Erika Sanders. Scott testified that the victim and [Petitioner] appeared to be "getting along" at the party and left the apartment together for "about 45 minutes to an hour." Trial Tr. (July 8, 2013) at 147. After the party, Sanders invited the victim and Scott to stay the night in the second bedroom of her apartment.
"[A]bout 5 minutes after laying down," the victim and Scott heard Sanders and [Petitioner] arguing in the master bedroom. Id. at 151. After a few minutes, [Petitioner] left the apartment, slamming the front door behind him. The victim then went into the master bedroom to talk to Sanders, and Sanders told the victim that he and Scott should leave. Scott, however, "felt that [the victim] got it straightened out" with Sanders because "he came back in a minute" and "laid back down." Id. at 154. Sanders could then be heard talking to [Petitioner] on the phone in the master bedroom. A "couple of minutes later, the door opened," id. at 156, and from the second bedroom, Scott and the victim could again hear Sanders and [Petitioner] arguing in the master bedroom. Scott could only hear [Petitioner] stating, "they got a daddy," and [Petitioner] stated these words "twice real loud." Id.
The victim then went into the master bedroom and told [Petitioner] that "they don't need to be arguing in front of the kids." Id. at 157. At that time, the victim's older child was in the second bedroom with Scott, but the victim's younger child was in the master bedroom with Sanders. Scott "got up to see what was going on." Id. at 58.[1] Scott testified that [Petitioner] was angry and that he was pacing as the victim spoke to him in calm tones. The victim was "trying to get his son out of the bedroom," but [Petitioner] "pushed his arm" and said "no, you're not going." Id. at 160. [Petitioner] then "pulled out his phone to show [the victim] some texts," and Scott then "went in and got the boy out of the room." Id. at 160-61. Sanders began telling [Petitioner], "he knows I love you." Id. at 161. The victim said, "That's you-all's business," while [Petitioner] continued to pace. Id. at 162.
Events continued to escalate, and at one point, [Petitioner] "reached for his back pocket and pulled a gun out and then put it back." Id. The victim "said one word," to which [Petitioner] replied, "What?" and suddenly shot the victim. Id. at 163. Scott fled into the living room of the apartment and attempted to escape, but she hid behind a couch when she was not able to open the door. From behind the couch, Scott heard the victim ask, "Why did you have to do it like this?" Id. at 166. She heard the victim pleading with Petitioner. Sanders then also came "running behind the couch." Id. Scott heard [Petitioner] state, "You-all aren't going to play me," and then Scott ran out of the apartment to a nearby convenience store. Id. at 167. [Petitioner] then shot the victim a second time, and the victim later died as a result of a gunshot wound to his chest.
At trial, the crime scene technician testified that he discovered two bullet cartridge casings in the master bedroom. He also discovered a bullet hole in the master bedroom wall and a second bullet hole in the master bedroom floor. Both bullets were recovered. One bullet was discovered on the opposite side of the master bedroom wall in the kitchen area, and the other bullet was lodged in the ceiling of the downstairs neighbor's apartment. In addition to the bullets and casings, the crime scene technician recovered a partially burned photograph of "an African-American male, [showing] the top of his head and section of his face and the shoulder." Trial Tr. (July 9, 2013) at 42. The burned photograph was found outside the apartment's entrance. He also discovered an "empty cardboard picture frame behind the TV in the living room." Id. at 32.
The medical examiner that performed the victim's autopsy testified that the victim had received two separate "through and through" gunshot wounds, meaning that both bullets "entered and exited" the victim's body. Id. at 71. The victim's left thigh had an entry wound and exit wound from one bullet, and the victim's torso also had an entry wound and exit wound from a second bullet. The victim's cause and manner of death was determined by the medical examiner to be a homicide from a gunshot wound to the torso.

ECF No. 9 at 8-9 (quoting ECF No. 9, attach. 1 at 1-3). On July 12, 2013, the jury imposed sentences of life on Petitioner's Murder conviction and three years on his Use of a Firearm conviction. ECF No. 9, attach. 1 at 53. After several months of post-trial motions, these sentences were formally imposed by the Trial Court on December 13, 2013. ECF No. 9, attach. 1 at 53.

         On May 7, 2014, Petitioner appealed his convictions to the Court of Appeals of Virginia on the folio wing three grounds: (1) that the trial court improperly admitted ten photographs into evidence over Petitioner's objections; (2) that the trial court erred in refusing to instruct the jury as to voluntary manslaughter; (3) that the trial court erred in denying Petitioner's motion for transcripts of trial proceedings to be prepared prior to Petitioner's sentencing. See ECF No. 9, attach. 1 at 54. By Order dated October 30, 2014, the Virginia Court of Appeals denied Petitioner's appeal. ECF No. 9, attach. 1. On May 27, 2015, after finding no reversible error, the Supreme Court of Virginia denied Petitioner's petition for appeal to the Supreme Court. ECF No. 9, attach. 2.

         On April 28, 2015, Petitioner filed a pro se Motion to Vacate, requesting that the Trial Court set aside his convictions on the grounds that his convictions were void. The Trial Court denied Petitioner's Motion to Vacate on June 30, 2015. ECF No. 9, attach. 3. The Supreme Court of Virginia refused Petitioner's appeal on June 7, 2016. ECF No. 9, attach. 4.

         On October 8, 2015, Petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. ECF No. 9, attach. 5. Therein, Petitioner raised the following seven claims, the first six of which alleged ineffective assistance of Trial Counsel: (1) Petitioner's Trial Counsel was ineffective because he failed "to object to jury instruction number 16, upon the ground that it stated an erroneous statement of the law;" (2) Petitioner's Trial Counsel was ineffective because he failed "to object to the first-degree murder jury instruction number 10; upon the ground that it omitted the elements: Motive, time, place, means and conduct;" (3) Petitioner's Trial Counsel was ineffective because he failed "to object to jury instruction number 4; upon the ground that it removes a factual issue from the jury amounting to a directed verdict;" (4) Petitioner's Trial Counsel was ineffective "in requesting the jury instruction for manslaughter by failing to argue that the Commonwealth's evidence supports such instruction;" (5) Petitioner's Trial Counsel was ineffective because he failed "to object to jury instruction number 12; upon the ground that it stated an erroneous statement of the law;" (6) Petitioner's Trial Counsel was ineffective because he failed "to file a motion to dismiss the indictment; upon the ground that the statute 18.2-32 was unconstitutional as it does not define the word 'murder;'" and (7) the Trial Court's July 11, 2013 conviction order for first-degree murder is void ab initio. ECF No. 9 at 2, ¶ 3 (citing ECF No. 9, attach. 5) (internal citations omitted). On May 25, 2016, the Supreme Court of Virginia denied all seven claims and dismissed Petitioner's state habeas petition. ECF No. 9 at 2, ¶ 3 (citing ECF No. 9, attach. 6).

         Petitioner filed the instant pro se § 2254 Petition for federal habeas relief on April 7, 2017, wherein he raised the following six grounds[2]: (1) Petitioner's trial counsel was ineffective because he failed to object to Jury Instruction No. 16 because according to Petitioner, it was an erroneous statement of the law; (2) Petitioner's Trial Counsel was ineffective because he failed "to object to Jury Instruction No. 4, which informed the jury it could not consider a witness' prior inconsistent statement as "evidence that what the witness previously said is true .. . [and] the instruction removes a factual issue from the jury and amounts to a directed verdict;" (3) Petitioner's Trial Counsel was ineffective when he requested the manslaughter instruction because he failed "to argue in support of the instruction [that] there was more than a scintilla of evidence to support such instruction;" (4) Petitioner's Trial Counsel was ineffective because he failed "to object to jury instruction 12 on the ground that it stated an erroneous statement of the law;" (5) Petitioner's Trial Counsel was ineffective because he failed "to move to have the murder indictment dismissed upon the ground that Va. statute 18.2-32 is unconstitutional as it does not define the word 'murder;'" and (6) that the Trial Court's July 11, 2013 conviction order for first degree murder is void ab initio. ECF No. 9 at 3, ¶ 4 (citing ECF No. 1 at 3, 5, 8-12).

         On August 31, 2017, the Respondent filed a Motion to Dismiss, a Rule 5 Answer, a Brief in Support of the Motion to Dismiss, and a Roseboro Notice. ECF Nos. 7-10. Petitioner filed an untimely Response on October 25, 2017. ECF No. 13.[3] 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 all of his present claims. Section 2254 allows a prisoner held in state custody to challenge his detention on die 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), qff'd, 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. See ECF No. 9, attach. 6. See also ECF No. 9 at 3 n.1 ("Although [Petitioner] raised a claim designated as '(a)(2)' in his state habeas, [sic] [Petitioner] has omitted that claim in his federal habeas petition.").

         1. Claim 1 ("(a)(1)") was not considered by the state courts.

         As noted by the Respondent, the argument advanced in the first claim ("(a)(1)") of the state habeas petition is different from that of the first claim ("(a)(1)") of the instant federal Petition. See ECF No. 9 at 4, ¶ 6. Specifically, a comparison of the two claims reveals that in the instant federal Petition,

[Petitioner] is no longer arguing that the instruction omitted an element of the offense (motive). Instead, [Petitioner] is arguing that the evidence was insufficient to establish his guilt beyond a reasonable doubt because, allegedly, the circumstances of motive, time, place, means[, ] and conduct did not concur to form an unbroken chain linking [Petitioner] to the murder.

ECF No. 9 at 4, ¶ 6. However, in light of the fact that Petitioner would now be unable to raise this first claim in state court because it would be procedurally barred as both untimely and successive, this claim is concomitantly exhausted and defaulted for the purposes of federal review. See ECF No. 9 at 5, ¶ 7. See also Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) ("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.") (citing Gray v. Netherland, 518 U.S. 152, 161-62 (1996) ("However, the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default.")); Bassette v. Thompson, 915 F.2d 932, 936 (4th Cir. 1990) ("The provisions of § 8.01-654(B)(2), Code of Virginia, are clear: 'No writ shall be granted on the basis of any allegation of facts of which petitioner had knowledge at the time of filing any previous petition.'") (quoting Va. Code § 8.01-654(B)(2)).

         With the exception of the first claim, the Respondent concedes that all of Petitioner's other current claims are properly exhausted. See ECF No. 9 at 3-5, ¶¶ 4-8. Accordingly, the undersigned FINDS that Petitioner has exhausted or effectively exhausted his state remedies with respect to Claims 1-6 of the Petition.

         B. Standards of Review

         1. 28 ...


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