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Masika v. Chesapeake Circuit Court

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

February 26, 2018

FRANCIS ANYOKORIT MASIKA, Petitioner.
v.
CHESAPEAKE CIRCUIT COURT, Respondent.

          MEMORANDUM OPINION

          RODERICK C. YOUNG, UNITED STATES MAGISTRATE JUDGE.

         Francis Anyokorit Masika. a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C, § 2254 ("§2254 Petition." ECF No. I)[1] challenging his convictions in the Circuit Court for the City of Chesapeake, Virginia ("Circuit Court"). Respondent moves to dismiss. (ECF No. 13.) Masika has tiled a Response. (ECF No. 18.) For the reasons set forth below, the Motion to Dismiss (EC1: No. 13) will be DENIED WITHOUT PREJUDICE.

         I. PERTINENT PROCEDURAL HISTORY

         A. Criminal Proceedings

         On January 24. 2014, Masika was convicted in the Circuit Court of forging a check, uttering a forged check, and obtaining money or property by false pretenses. (FCF No. 15-1, at 1.) The Circuit Court sentenced Masika to a total of Fifteen years of imprisonment-5 years on each count-and suspended 4 years and 8 months on each count, for a total of fourteen years suspended, and an active sentence of one year. (Id. at 2-3.) The Circuit Court also conditioned Masika's sentence suspension on his compliance with supervised probation. (Id. at 2.) Masika appealed. On April 2, 2015, the Court of Appeals of Virginia denied Masika's petition for appeal. (ECF No. 15-2, at 1-5.) A three-judge panel of the Court of Appeals of Virginia denied Masika's petition for appeal on August 6, 2015. (ECF No. 15-2, at 6.) Masika did not appeal to the Supreme Court of Virginia.

         In a letter dated March 26, 2016, Masika wrote to the Circuit Court requesting that his "case be reopened because [his] attorney never informed [him] that this case would affect [his] immigration status. . . ." Letter 1, Masika v. Commonwealth, Nos. CR13-524-00, CR 13-524- 01, CR13-524-02 (Va. Cir. Ct. filed Apr. 1, 2016).[2] By letter dated April 6, 2016, the Circuit Court informed Masika that his March 26, 2016 letter was received and had been forwarded to his attorney. Masika v. Commonwealth, Nos. CR13-524-00, CR13-524-01, CR13-524-02 (Va. Cir. Cl. Apr. 6, 2016).

         In a letter dated March 29, 2016, Masika wrote to the Circuit Court requesting "filing for ineffective [assistance of] counsel" and that the Court "vacate the judgment... and permit [him] to withdraw [his] plea . . . ." Letter 1, Masika v. Commonwealth, Nos. CR 13-524-00, CR13-524-01, CR13-524-02 (Va. Cir. Ct. filed Apr. 4, 2016) (capitalization corrected). By letter dated April 12, 2016, the Circuit Court informed Masika that his March 29, 2016 letter was received and had been forwarded to his attorney. Masika v. Commonwealth, Nos. CR 13-524-00, CR 13-524-01, CR 13-524-02 (Va. Cir. Ct. Apr. 12, 2016).

         In a letter received by the Circuit Court on September 29, 2016, Masika requested that the Court "reconsider the sentencing in [his] case . . . ." Letter 1, Masika v. Commonwealth, Nos. CR13-524-00, CR13-524-01, CR13-524-02 (Va. Cir. Ct. filed Sept. 29, 2016). The record reveals that the Circuit Court retained Masika's September 29, 2016 letter but did not take any action on it because it did "not comply with Rule 12(B) of the Chesapeake Circuit Court." Masika v. Commonwealth, Nos. CR13-524-00, CR13-524-01, CR13-524-02 (Va. Cir. Ct. Sept. 29, 2016).

         In a letter dated November 11, 2016, Masika wrote to the Circuit Court requesting that the Court consider his "petition for grievance" about the custody credit he believed he was entitled to while in jail. Letter 1, Masika v. Commonwealth, Nos. CR13-524-00, CR13-524-01, CR13-524-02 (Va. Cir. Ct. filed Nov. 16, 2016) (capitalization corrected). The record reveals that the Circuit Court retained Masika's November 11, 2016 letter but did not take any action on it because it did "not comply with Rule 12(B) of the Chesapeake Circuit Court." Masika v. Commonwealth, Nos. CR13-524-00, CR 13-524-01, CR 13-524-02 (Va. Cir. Ct. Dec. 27, 2016).

         In a letter dated December 27, 2016, Masika wrote to the Circuit Court inquiring about his "couple of letters" for which he did not receive a response. Letter 1, Masika v. Commonwealth, Nos. CR13-524-00, CRI3-524-01, CR13-524-02 (Va. Cir. Ct. filed Dec. 29, 2016). By letter dated January 5, 2017, the Circuit Court informed Masika that his "request has been forwarded to Judges Chambers." Masika v. Commonwealth, Nos. CR 13-524-05, CR13-524-06, CR13-524-07 (Va. Cir. Ct. Jan. 5, 2017).[3]

         B. Probation Violation Proceedings

         On October 27, 2016, Masika entered a plea of nolo contendere to violating conditions of his supervised probation. See Revocation Order 1-3, Commonwealth v. Masika, Nos. CR13-524-05, CR13-524-06, CR13-524-07 (Va. Cir. Ct. Oct. 27, 2016). The Circuit Court revoked his sentence and re-suspended all but eighteen months of imprisonment. Id. at 2; see Correction Order 1, Commonwealth v. Masika, Nos. CR13-524-05, CR13-524-06, CR13-524-07 (Va. Cir. Ct.Dec. 13, 2017).

         The Circuit Court docketed all of the same letters detailed above, and others, in its file pertaining to Masika's probation violation proceedings. In addition, the record reveals that counsel filed a Motion for Reconsideration of Masika's sentence on November 27, 2017. See Motion for Reconsideration, Commonwealth v. Masika, Nos. CR13-524-05, CR13-524-06, CR13-524-07 (Va. Cir. Ct. filed Nov. 27, 2017). The Circuit Court denied the Motion for Reconsideration on November 30, 2017. Order at 1, Commonwealth v. Masika, Nos. CR13-524-05, CR13-524-06, CR13-524-07 (Va. Cir. Ct. Nov. 30, 2017).

         On December 18, 2016, Masika filed his § 2254 Petition with this Court. (§ 2254 Pet. 15.)[4] In his § 2254 Petition, the Court construes Masika to assert the following:

Claim One: The Commonwealth conducted a malicious prosecution of Masika when the Commonwealth's Attorney filed new charges against Masika after his initial conviction was overturned on appeal. (Id. at 5.)
Claim Two: The Commonwealth's Attorney and the Circuit Court judge were prejudiced against Masika because his initial conviction was ...

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