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Cutrell v. Clarke

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

May 10, 2018

Michael Brooke Cutrell, Petitioner,
v.
Harold Clarke, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Michael Brooke Cutrell, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of burglary and other offenses entered by the Chesterfield County Circuit Court. Before the Court is respondent's Motion to Dismiss the petition [Dkt. No. 16], to which petitioner has filed a response. [Dkt. No. 23] For the following reasons, the Motion to Dismiss will be granted, and the petition will be dismissed with prejudice.

         I. Background

         Following a jury trial, Cutrell was convicted on July 8, 2013 of one count of felony statutory burglary, felony grand larceny, and misdemeanor assault. He was sentenced to a total of 47 years and 12 months imprisonment, with 20 years and 12 months suspended. Case Nos. CR12F02755-06 and -07, CR12M02874-01; Resp. Ex. A-l.

         On direct appeal, Cutrell argued that the evidence was insufficient as a matter of law: (1) to prove his identity as the perpetrator, and (2) to prove he was armed with a deadly weapon when he entered the victim's home. The petition for appeal was denied on February 26, 2014, Cutrell v. Commonwealth. R. No. 1423-13-2 (Va. Ct. App. Feb. 26, 2014), and a three-judge panel declined further review on July 2, 2014. Resp. Ex. A-2. The Supreme Court of Virginia refused Cutrell's petition for appeal on January 15, 2015. Cutrell v. Commonwealth. R. No. 141178 (Va. Jan. 15, 2015); Resp. Ex. A-3.

         Cutrell timely filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia in which he raised the following claims:

1. Trial counsel advised him not to accept a plea offer that would have capped his sentence at 14 years and to proceed to a jury trial instead:
a. Without advising him that the minimum sentence for armed statutory burglary was 20 years, and the maximum was life;
b. Without advising him as to the evidence that would be used against him at trial;
c. Without advising him as to the intended defense strategy;
d. By misleading him to believe that the Commonwealth's evidence was inadmissible and insufficient;
e. By deceiving him into believing that if he accepted the plea offer counsel would be unable to do anything further and he "would be on his own."
2. Trial counsel was ineffective for failing to file a pretrial motion to suppress the victim's identification of petitioner as the perpetrator.
3. Trial counsel was ineffective for failing to investigate and challenge the valuation of the victim's property that was used to charge grand larceny.
4. Trial counsel was ineffective for failing to challenge the chain of custody of the DNA evidence.
5. Trial counsel was ineffective for failing to present evidence favorable to the defense in the form of:
a. Petitioner's "prominently" tattooed arms:
b. Independent DNA expert testimony;
c. Petitioner's testimony in his own defense.
6. Trial counsel was ineffective for failing to object when the trial court abused its discretion in denying the jury's request to view petitioner's prominent arm tattoos.
7. His rights to due process and a fair trial were violated when the court refused to strike the charge of armed burglary after the Commonwealth failed to prove beyond a reasonable doubt that petitioner was armed.

Resp. Ex. B.

         After the respondent filed a motion to dismiss the petition, the Supreme Court of Virginia directed that an evidentiary hearing be conducted on specified factual issues arising from Claim 1 and a portion of Claim 5 as listed above. Resp. Ex. C. The circuit court conducted the hearing on December 14, 2016 and certified its findings to the Supreme Court of Virginia on February 3, 2017. Resp. Ex. D. On May 30, 2017, the Supreme Court dismissed CutrelPs habeas corpus petition. Cutrell v. Clarke. R. No. 160297 (Va. May 30, 2017); Resp. Ex. E. Cutrell's motion for rehearing was denied on October 5, 2017.

         Cutrell then turned to the federal forum and timely filed the instant application for § 2254 relief by placing it into his institution's mailing system on October 13, 2017. Pet. at 16. He makes the following claims:[1]

1. He received ineffective assistance of counsel during plea negotiations:
a. Counsel incorrectly told him that he could not plead guilty while maintaining his innocence.
b. Counsel provided him with insufficient notice of the plea offer.
c. Counsel failed to "find out the specifics" of the 10-year plea offer made a week before trial.
d. Counsel disregarded Cutrell's express wish to seek a continuance.
e. Counsel failed to advise him that he faced a life sentence.
2. He received ineffective assistance of counsel during trial:
a. Counsel and the court failed to advise him of his right to testify on his own behalf.
b. Counsel did not challenge the Commonwealth's evidence that he brought a knife into the victim's home.
c. Counsel "never argued against grand larceny, even though [the] value" of the stolen items ...

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