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Henry v. Virginia Department of Corrections

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

February 23, 2018

TROY TERRELL HENRY, Petitioner,
v.
VIRGINIA DEP'T OF CORRECTIONS, Respondent.

          MEMORANDUM OPINION (GRANTING IN PART MOTION TO DISMISS)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE.

         Troy Terrell Henry, a federal inmate proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1). In his § 2254 Petition, Henry challenges his convictions in the Circuit Court for the City of Alexandria, Virginia ("Circuit Court") of racketeering, enticing a prostitute, and receiving money or earnings of a prostitute. (See ECF No. 15-2, at 3.) Specifically, in his § 2254 Petition, the Court construes Henry to raise the following claims for relief:

Claim One: The Circuit Court erred when it allowed prejudicial testimony about a prior bad act by Henry. (§ 2254 Pet. 5.)[1]
Claim Two: (a) The Commonwealth committed a Brady[2] violation when it failed to provide Henry with the information that Ms. Miller was still involved in prostitution up to the time of trial; (b) The Commonwealth committed a Brady violation when it failed to provide the information that Ms. Miller engaged in prostitution prior to her relationship with Henry; and, (c) The Commonwealth committed a Brady violation when it failed to provide the aforementioned exculpatory information about Ms. Miller in a timely manner. (Id. at 7.)
Claim Three: The Commonwealth failed to prove beyond a reasonable doubt the existence of an enterprise, a necessary element for a conviction of racketeering. (Id. at 8.)
Claim Four: Henry's right to a speedy trial was violated. (Id. at 10.)
Claim Five: Henry was not tried by a fair cross-section of the community. (Id. at 12.)
Claim Six: The Commonwealth failed to prove beyond a reasonable doubt that Henry received anything of value, a necessary element for a conviction of receiving money or earnings of a prostitute. (Id. at 13.)

         Respondent moves to dismiss on the grounds that Claims One and Four are not cognizable on federal habeas, and that Claims Two, Three, Five, and Six are meritless. (Br. Supp. Mot. Dismiss 6-14, ECF No. 15.) Respondent provided Henry with Roseboro[3]notice. (ECF No. 16.) Henry has not responded to the Motion to Dismiss, but he has submitted a Motion for Leave to File a Supplemental Complaint, or in the alternative, a Motion to Hold his § 2254 Petition in Abeyance ("Motion for Stay and Abeyance, " ECF No. 17). For the reasons that follow, the Motion to Dismiss (ECF No. 13) will be granted in part. Henry's Motion for Stay and Abeyance (ECF No. 17) will be denied without prejudice. Henry's Motion for an Extension of Time (ECF No. 18) will be denied as moot.

         I. Procedural History

         On October 9, 2012, Henry was named in a three-count Indictment in the Circuit Court charging him with racketeering, enticing a prostitute, and receiving money or earnings of a prostitute. Indictment 1-2, Commonwealth v. Henry, No. CF12000322 (Va. Cir. Ct. Oct. 9, 2012); (see ECF No. 15-2, at 3.) In April 2013, Henry was incarcerated at the Federal Correctional Complex ("FCC") in Coleman, Florida where he was serving a federal sentence. Writ of Habeas Corpus Ad Prosequendem 1-2, Commonwealth v. Henry, No. CF12000322 (Va. Cir. Ct. Apr. 8, 2013). On April 8, 2013, the Circuit Court granted the Commonwealth's petition for a Writ of Habeas Corpus Ad Prosequendem. Id. at 2. On July 24, 2013, Henry was transported to Alexandria, Virginia and held without bail. Commitment Order 1, Commonwealth v. Henry, No. CF 12000322 (Va. Cir. Ct. July 24, 2013).

         Henry's jury trial began in the Circuit Court on November 25, 2013. (See ECF No. 15-1, at 1.) On November 26, 2013, Henry was convicted in the Circuit Court of all three counts. (ECF No. 15-1, at 1-3; ECF No. 15-2, at 3.) The Circuit Court entered judgment and sentenced Henry to a total of 27 years of imprisonment, with an additional three years suspended. (ECF No. 15-2, at 1-4.) Henry appealed.

         On November 14, 2014, the Court of Appeals of Virginia denied Henry's Petition for Appeal. (ECF No. 15-3, at 1.) On April 23, 2015, a three-judge panel of the Court of Appeals of Virginia denied Henry's Petition for Appeal. (ECF No. 15-4, at 1.) On January 19, 2016, the Supreme Court of Virginia refused Henry's Petition for Appeal. (ECF No. 15-5, at 1.)

         On January 4, 2017, the Court received the instant § 2254 Petition. (ECF No. 1.) On June 14, 2017, Henry submitted a petition for writ of habeas corpus to the Circuit Court raising three additional habeas claims that are not presented in his § 2254 Petition. (See ECF No. 17, at 3.) By Order entered September 1, 2017, the Circuit Court denied Henry's state habeas petition as untimely. (ECF No. 23-1.)

         II. Constraints on Federal Habeas Review

         In order 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 limits 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)).

         In Claim One, Henry argues that the Circuit Court erred by admitting prejudicial testimony of a prior bad act by Henry. (§ 2254 Pet. 5.)[4] Claim One does not allege a violation of the U.S. Constitution or a federal law; rather, Henry argues that the Circuit Court erred by allowing Ms. Miller's testimony under Virginia's evidentiary rules about prior bad acts. (See § 2254 Pet. 5.) Thus, Claim One is not cognizable on federal habeas. Accordingly, Claim One will be dismissed.

         III. Challenges to the Sufficiency of the Evidence

         In Claim Three, Henry challenges the sufficiency of the evidence for his conviction of racketeering. (§ 2254 Pet. 8.) Specifically, Henry alleges that the Commonwealth failed

to prove the existence of an enterprise beyond a reasonable doubt. There was no testimony that any person other than Miller or Henry exercised any control over the alleged enterprise. Over defense objection, evidence of conduct outside of [the] indictment timeframe w[as] disclosed. There was no testimony from anyone who knew [Henry] prior to July 2011, excluding Ms. Miller.

(Id.)

         In rejecting this claim, the Court of Appeals of Virginia relied on the following analysis:

"It shall be unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through racketeering activity." [Va.] Code § 18.2-514(C). According to [Va.] Code 18.2-513, "'[e]nterprise' includes any of the following: sole proprietorship, partnership, corporation, business trust, criminal street gang; or other group of three or more individuals associated for the purpose of criminal activity."
"[A]n association-in-fact enterprise is simply a continuing unit that functions with a common purpose." Boyle v. United States, 556 U.S. 938, 948 (2009) (citing United States v. Turkette, 452 U.S. 576 (1981)). "Members of the group need not have fixed roles; different members may perform different roles at different times." Id. "While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence." Id.
[Henry] argues that the Commonwealth's evidence proved that only two people, [Henry] and Ms. Miller, were "consistently involved in the alleged prostitution ring." In order for there to be an enterprise, there has to be at least three people.
The Commonwealth provided evidence that there were numerous others, besides [Henry] and Ms. Miller, involved in the enterprise. Cynthia Orr testified that she worked as a prostitute for [Henry] in the summer of 2011. There also was evidence about other prostitutes who worked with them, including JoJo Shipp, Janelle Stein, a woman named "Dee Dee, " and other women whose street names were "Cream, " "Kim, " and "Diamond." "Although the faces in the group may have changed, there was substantial evidence of a structure within the group within which the various associates operated according to their specific function....." United States v. Tillett, 763 F.2d 628, 631 (4th Cir. 1985).
The trial court did not err in denying the motion to strike because the evidence was sufficient to prove beyond a reasonable doubt that [Henry] was part of an enterprise and guilty of racketeering.

(ECF No. 15-3, at 5-6 (third and fourth alterations in original).)

         A federal habeas petition warrants relief on a challenge to the sufficiency of the evidence only if "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324(1979). The relevant question in conducting such a review is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Id. at 318.

         Reviewing the evidence in the light most favorable to the Government, Henry's assertion that the Commonwealth failed to prove beyond a reasonable doubt the existence of a three-person enterprise is discredited by the record. As observed by the Court of Appeals of Virginia, the evidence at trial included testimony by Ms. Miller and Ms. Orr, who both detailed that they worked as prostitutes together and for Henry. (Nov. 25, 2013 Tr. 201; 217-18; 406.) Ms. Miller further described that other women worked as Henry's "recruitments" and prostitutes, including "Kim, " "Cream, " "Diamond, " "Janelle, " and "Dee Dee." (Nov. 25, 2013 Tr. 200-01; 217-18.) Ms. Orr also explained that she was not Henry's sole prostitute during her relationship with Henry. (Nov. 25, 2013 Tr. 402-03.) The evidence at trial supported the jury's finding that although numerous women worked for him at different times, a hierarchy of Henry as the pimp and these women as his prostitutes remained. See Tillett, 763 F.2d at 631. Therefore, Henry's Claim Three will be dismissed.

         In Claim Six, Henry challenges the sufficiency of the evidence for his conviction of receiving money or earnings of a prostitute. (§ 2254 Pet. 13.) In rejecting this claim, the Court of Appeals of Virginia stated as follows:

[Henry] argues that the trial court erred in denying his motion to strike because "the Commonwealth failed to prove the transfer of earnings by Ms. Miller to [Henry] during the period of the indictment in the city of ...

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