United States District Court, E.D. Virginia, Richmond Division
BRUCE DUANE WALTON, Petitioner.
MR. TRACY RAY, Respondent.
A. Gibney Jr., United States District Judge
Duane Walton, a Virginia slate prisoner proceeding pro
se, brings this petition pursuant to 28 U.S.C. §
2254 ("§ 2254 Petition." ECF No. 3),
challenging his conviction in the Circuit Court of the County
of Menrico, Virginia (hereinafter, "Circuit
Court"). In his § 2254 Petition, Walton argues
entitlement to relief based upon the following
Claim One: "Concealment of exculpatory facts in grounds
of discovery during trial and newly found evidence while in
trial." (Id. at 6.)
Claim Two: "Bill of Rights violations."
(Id. at 8.)
Claim Three: "Errors in the Supreme Court of Virginia
Petition for Appeal." (Id. at 9.)
Claim Four: "Errors in Statement of Facts prepared and
slated in the Supreme Court of Virginia Appeal."
(Id. at 11.)
moves to dismiss on the ground that Walton's claims are
procedurally defaulted and barred from review here. Walton
has filed an "Answer and Objection to Brief"
("Response.'- ECF No. 16). For the
reasons set forth below, the Motion to Dismiss (ECF No. 9)
will be GRANTED.
jury trial, Walton was convicted of first-degree murder, one
count of felony credit card theft, one count of felony
attempted credit card theft, two counts of misdemeanor credit
card fraud, and one count of misdemeanor attempted credit
card fraud. (ECF No. 10-1, at 1-2.) The jury recommended a
sentence of life plus twenty-five years on the felony counts,
and an additional thirty-six months on the misdemeanor
counts. (Id. at 3-4.) On March 5. 2015, the Circuit
Court imposed the sentence recommended by the jury.
(Id. at 7.)
appealed, arguing that the evidence was insufficient to
support his conviction of first-degree murder. (ECF No. 10-4,
at 1.) The Court of Appeals of Virginia denied the petition
for appeal. (See id.) The Supreme Court of Virginia
refused the petition for appeal. (ECF No. 10-5, at 1.) Walton
did not file a petition for writ of habeas corpus in the
state courts. Rather, on July 18, 2017, Walton filed his
§ 2254 Petition in this Court. (§ 2254 Pet. 16.)
EXHAUSTION AND PROCEDURAL DEFAULT
a state prisoner can bring a § 2254 petition in federal
district court, the prisoner must first have "exhausted
the remedies available in the courts of the State." 28
U.S.C. § 2254(b)(1)(A). State exhaustion "is rooted
in considerations of federal-state comity." and in
Congressional determination via federal habeas laws
"that exhaustion of adequate state remedies will
"best serve the policies of federalism.'"
Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va.
2005) (quoting Preiser v. Rodriguez, 411 U.S. 475,
491-92 & n. 10 (1973)). The purpose of exhaustion is
"to give the State an initial opportunity to pass upon
and correct alleged violations of its prisoners* federal
rights.** Picard v. Connor, 404 U.S. 270. 275 (1971)
(internal quotation marks omitted). Exhaustion has two
aspects. First, a petitioner must utilize all available state
remedies before he can apply for federal habeas relief.
See O 'Sullivan v. Boerckel, 526 U.S. 838.
844-48 (1999). As to whether a petitioner has used all
available state remedies, the statute notes that a habeas
petitioner "shall not be deemed to have exhausted the
remedies available in the courts of the State ... if he has
the right under the law of the State to raise, by any
available procedure, the question presented." 28 U.S.C.
second aspect of exhaustion requires a petitioner to have
offered the state courts an adequate opportunity to address
the constitutional claims advanced on federal habeas.
"To provide the State with the necessary
'opportunity, 1 the prisoner must 'fairly
present' his claim in each appropriate state court
(including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of
the claim." Baldwin v. Reese. 541 U.S. 27, 29
(2004) (quoting Duncan v. Henry, 513 U.S. 364,
365-66 (1995)). Fair presentation demands that "both the
operative facts and the controlling legal principles"
must be presented to the state court. Longworth v.
Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting
Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir.
2000)). The burden of proving that a claim has been exhausted
in accordance with a "state's chosen procedural
scheme" lies with the petitioner. Mallory v.
Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).
distinct but related limit on the scope of federal habeas
review is the doctrine of procedural default."
Breanl v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
This doctrine provides that "[i]f a state court clearly
and expressly bases its dismissal of a habeas
petitioner's claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground
for the dismissal, the habeas petitioner has procedurally
defaulted his federal habeas claim." Id.
(citing Coleman v. Thompson, 501 U.S. 722, 731-32
(1991)). A federal habeas petitioner also procedurally
defaults claims when the "petitioner fails to exhaust
available state remedies and 'the court to which the
petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims
procedurally barred.'" Id. (quoting
Caleman, 501 U.S. at 735 n. I). The burden of
pleading and proving that a claim is procedurally defaulted
rests with the state. Jones v. Sussex I Stale
Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing
cases). Absent a showing of "cause for the default and
actual prejudice as a result of the alleged violation of
federal law, " or a showing that "failure to
consider the claims will result in a fundamental miscarriage
of justice, " this Court cannot review the merits of a
defaulted claim. Coleman, 501 U.S. at 750; see
Harris v. Reed, 489 U.S. 255, 262 (1989).
exhaust his claims, Walton was required to present properly
these claims to the Supreme Court of Virginia. If Walton now
attempted to raise his claims in the Supreme Court of
Virginia in a habeas petition, that habeas petition would be
barred as successive pursuant to section 8.01-654(B)(2) of
the Virginia Code,  and as untimely pursuant to section
8.01-654(A)(2) of the Virginia Code. Virginia's statute of
limitations for habeas actions and the bar on successive
habeas petitions are adequate and independent procedural
rules when so applied. See Clagett v. Angelone, 209
F.3d 370, 379 (4th Cir. 2000); Sparrow v. Dir., Dep't
of Con:, 439 F.Supp.2d 584, 587-88 (E.D. Va. 2006). In
his § 2254 Petition. Walton admits that he never raised
any of his claims in the state courts. Walton also fails to
demonstrate any cause and prejudice for his default or a
fundamental miscarriage of justice in his § 2254
acknowledges that under Martinez v. Ryan, 566 U.S. 1
(2012), ineffective assistance of counsel "at
initial-review collateral proceedings may establish cause for
a prisoner's procedural default of a claim of ineffective
assistance at trial." hi. at 9. Here, as just
explained, Walton never pursued any collateral proceedings in
state court. Thus. Martinez is inapplicable here.
See Jones v. Pa. Bd. of 'Prob. & Parole, 492
Fed.Appx. 242, 246-47 (3d Cir. 2012) (holding that the
"Martinez analysis is inapplicable where the
criminal defendant did not initiate any state collateral
review proceeding whatsoever*'); Pullen v. Dir., Va.
Dep't of Con:, No. 7:14CV00211. 2015 WL 159533, at
*3 (W.D. Va. Jan. 13. 2015), appeal dismissed, 604
Fed.Appx. 284 (4th Cir. 2015) (citing Jones and
explaining that because petitioner "did not initiate a
state habeas proceeding, ... he cannot benefit from the
Martinez exception to default of his claims that
trial counsel was ineffective"); Anderson v.
Clarke, No. 2:13-CV-223, 2014 WL 1203032, at *5 (E.D.
Va. Mar. 24, 2014).
response to argument made by Respondent, for the first time
in his Reply, Walton argues that his "actual
innocence" excuses his default and his conviction for
first-degree murder would amount to a fundamental miscarriage
of justice. (IiCF No. 16, at 3-5.) Walton's actual
innocence argument is comprised mostly of case law supplied
by Respondent and recited by Walton and is short on facts to
support his argument. As discussed at length below. Walton is
neither actually innocent, nor does his conviction result in
a fundamental miscarriage of justice.