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Bache v. Clarke

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

July 3, 2018

HAROLD W. CLARKE, Respondent.



         Gregory Shawn Bache, a Virginia inmate proceeding with counsel, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his convictions in the Circuit Court of Caroline County, Virginia ("Circuit Court"). Respondent has moved to dismiss. (ECF No. 6.) Bache did not file a response. For the reasons that follow, the Motion to Dismiss will be granted.


         Following a bench trial, the Circuit Court convicted Bache of six counts of rape and five counts of aggravated sexual battery. (ECF No. 7-1, at 1-2.)[1]At his sentencing hearing, the Circuit Court also accepted Bache's guilty plea and convicted Bache of an additional offense of escape from custody. (Id. at 3.) The Circuit Court sentenced Bache to one hundred and ten years of incarceration, with seventy-five years suspended, resulting in an active sentence of thirty-five years. (Id. at 2-4.)[2] Bache appealed, arguing that insufficient evidence existed to convict him of the six rape counts and the five aggravated sexual battery counts. (ECF No. 7-2, at 1.)

         The Court of Appeals of Virginia aptly summarized the evidence of Bache's guilt as follows:

Appellant challenges the sufficiency of the evidence to support his six convictions of rape and five convictions of aggravated sexual battery. "On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).
The victim was born on October 17, 1991. She was four years old when her mother married appellant. The victim lived with her mother, appellant, and their two children in Caroline County.
The victim testified that on the night she returned home from a trip to California in August 2005, appellant entered her bedroom, pushed her down on a blue blanket, and removed her clothing. Appellant then forced the victim to have sexual intercourse with him. During the incident, the victim was struggling and crying, and she told appellant to stop. Afterward, appellant gathered his own clothing, as well as the victim's, and washed it. The victim put the blue blanket in her closet. Appellant later said he would hurt the victim, her mother, and her siblings if she told anyone about what had happened. The victim was afraid, so she did not tell anyone about what had happened.
The victim testified that the appellant forced her to submit to sexual intercourse on a weekly basis while she was fourteen years old. The sexual activity with appellant continued through the victim's fifteenth, sixteenth, and seventeenth birthdays. After the victim turned eighteen, appellant forced her to have sexual intercourse with him even more frequently.
In April 2010, the victim confided in a friend that appellant was forcing her to have sex with him. The victim subsequently told her boyfriend as well. Both the victim's friend and her boyfriend urged the victim to run away or to report appellant's conduct.
During the night of July 14, 2010, appellant entered the victim's bedroom, forced her down, and had sexual intercourse with her. On the subsequent afternoon the victim contacted the police and reported that appellant had raped her. When the police went to appellant's workplace and arrested him, he got into his vehicle and tried to get away from the officers.
When the victim was fifteen, appellant took the victim to a medical clinic for a pregnancy test. Appellant filled out the associated paperwork with his own last name even though that was not the victim's true name. Appellant also used his own social security number rather than the victim's. The victim had not had sexual intercourse with anyone but appellant. Appellant later had the victim call the clinic for the results of the test and report it to him, but not her mother.
The Commonwealth introduced evidence that from 2005 to 2010 appellant tried to control the victim's social relationships and closely monitored the victim's activities on the internet. He also required her to send him text messages at specific times of the day.
After appellant's arrest, the police seized a blue blanket from the victim's bedroom closet. She testified it was the same blanket upon which appellant had forced her to have sex for the first time in 2005. Genetic material in a seminal stain on the blanket was consistent with appellant's DNA profile. Condoms and a pregnancy test also were found in the victim's bedroom. The victim testified that appellant had purchased the items.
When the police interviewed appellant after his arrest, he was advised that the victim was at the hospital having a physical examination to recover evidence. Appellant subsequently admitted that he had a sexual relationship with the victim, but it had not started until after she turned eighteen. In an interview on July 19, 2010, however, appellant said his sexual relationship with the victim had begun before her eighteenth birthday.
Testifying in his own behalf, appellant denied raping the victim in August 2005. He further denied having any sexual contact with her until after she turned eighteen. He stated that he had never forced her to have sex with him, but they had engaged in consensual sexual intercourse beginning in March 2010.
Appellant contends the evidence was insufficient to sustain his convictions because the victim's testimony was inconsistent and was contrary to human experience. A conviction of a crime involving sexual assault may depend upon the "uncorroborated testimony of a prosecutrix if her evidence is credible, and the guilt of the accused is believed by the [fact finder] beyond a reasonable doubt." Willis & Bell v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 812 (1977). "Because sexual offenses are typically clandestine in nature, seldom involving witnesses to the offense except the perpetrator and the victim, a requirement of corroboration would result in most sex offenses going unpunished." Garland v. Commonwealth, 8 Va.App. 189, 192, 379 S.E.2d 146, 147 (1989). Nonetheless, the victim's testimony must not be so contrary to human experience as to render it unworthy of belief. See Willis, 218 Va. at 563, 238 S.E.2d at 813.
The trial court credited the victim's testimony, and rejected appellant's claim that his sexual intercourse with the victim was consensual and only after she became an adult. "In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt." Marable v. Commonwealth, 27 Va.App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
The Commonwealth's evidence proved that appellant forced the victim to have sexual intercourse with him in 2005, when she was thirteen years old. The victim did not tell anyone about appellant's actions because she was fearful for the safety of herself and her family. In the ensuing years, appellant forced the victim to have intercourse with him on a weekly basis. Appellant continued to have forcible sexual intercourse with the victim after she turned eighteen, including just prior to his arrest in July 2010. Eventually, the victim confided in friends about appellant's actions. Appellant attempted to flee when the police tried to take him into custody for the offenses. Appellant's semen was found on the blue blanket in the victim's closet, the same blanket upon which he had first forced the victim to submit to intercourse.
Considering all the facts and circumstances, we find the victim's testimony was not so contrary to human experience as to render it unworthy of belief and that the evidence was sufficient to prove beyond a reasonable doubt that appellant was guilty of rape and aggravated sexual battery.

(Id. at 1-4 (alterations in original).)

         The Court of Appeals of Virginia denied the petition for appeal (id. at 1), a three-judge panel again denied the petition for appeal (id. at 6), and the Supreme Court of Virginia subsequently denied the petition for appeal (ECF No. 7-3, at 1). Bache, by the same counsel representing him in the instant § 2254 Petition, filed a petition for writ of habeas corpus in the Circuit Court raising, inter alia, the same claim he raises here. (ECF No. 7-4.) After an evidentiary hearing, the Circuit Court denied his petition for a writ of habeas corpus. (ECF No. 7-6, at 1-3; ECF No. 7-7, at 2.) The Supreme Court of Virginia refused the petition for appeal. (ECF No. 7-8, at 1.)

         Bache then filed this instant § 2254 Petition. Bache demands relief upon the ground that his counsel allegedly rendered ineffective assistance when he failed to provide Bache with adequate advice regarding a plea offer. (§ 2254 Pet. 16.) Bache claims that, had counsel provided the necessary advice, Bache would have accepted the plea and would have received a ten-year sentence. (Id. ("Claim A").)


         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 ("AEDPA") further circumscribes 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 ...

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