United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING IN PART MOTION TO
E. HUDSON UNITED STATES DISTRICT JUDGE.
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.)
Claim Two: (a) The Commonwealth committed a
Brady 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
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.)
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
Roseboronotice. (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.
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).
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.
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.)
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.
Constraints on Federal Habeas Review
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;
(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)).
Claim One, Henry argues that the Circuit Court erred by
admitting prejudicial testimony of a prior bad act by Henry.
(§ 2254 Pet. 5.) 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.
Challenges to the Sufficiency of the Evidence
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.
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
"[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."
[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
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.
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
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 ...