United States District Court, E.D. Virginia, Richmond Division
Roderick C. Young, United States Magistrate Judge.
Anyokorit Masika, a former Virginia prisoner proceeding
pro se, brings this petition pursuant to 28 U.S.C.
§ 2254 ("§2254 Petition," ECF No.
challenging his convictions in the Circuit Court for the City
of Chesapeake, Virginia ("Circuit Court") and the
sentence he received for violating the terms of his
supervised probation. By Memorandum Opinion and Order entered
on February 27, 2018, the Court denied without prejudice
Respondent's Motion to Dismiss. (ECF Nos. 27-28.) The
matter is now before the Court on Respondent's Renewed
Motion to Dismiss ("Motion to Dismiss," ECF No.
30). Masika has filed a Response. (ECF No. 35.) For the
reasons set forth below, the Motion to Dismiss (ECF No. 30)
will be GRANTED.
PERTINENT PROCEDURAL HISTORY
Masika's Criminal Proceedings
March 5, 2013, a grand jury indicted Masika for forging a
check (Count One), uttering a forged check (Count Two),
obtaining money or property by false pretenses (Count Three),
and money laundering-proceeds from felony activity (Count
Four). (ECF No. 32-7, at 1-4.) On January 24, 2014, Masika
entered an Alford Plea and was convicted in the Circuit
Court of Counts One, Two, and Three, and the Commonwealth
nolle prossed Count Four. (ECF No. 32-1, at 3.) On
July 15, 2014, the Circuit Court sentenced Masika to a total
of fifteen years of imprisonment-five years on each count-and
suspended four years and eight months on each count, for a
total of fourteen years suspended, and an active sentence of
one year. (Id. at 4-5.) The Circuit Court also
conditioned Masika's sentence suspension on his
compliance with supervised probation. (Id. at 4.)
April 2, 2015, the Court of Appeals of Virginia denied
Masika's petition for appeal. (ECF No. 32-2, at 1-5.) On
August 6, 2015, a three-judge panel of the Court of Appeals
of Virginia denied Masika's petition for appeal.
(Id. at 6.) Masika did not appeal to the Supreme
Court of Virginia.
the pendency of Masika's appeal of his convictions for
forging a check, uttering a forged check, and obtaining money
or property by false pretenses, on May 6, 2014, the Court of
Appeals of Virginia reversed Masika's previous conviction
for failure to return leased property, which was unrelated to
the other convictions on appeal. (ECF No. 32-6.)
Probation Violation Proceedings
October 27, 2016, Masika entered a plea of nolo
contendere to violating conditions of his supervised
probation. (ECF No. 32-5, at 1-5.) The Circuit Court
revoked Masika's sentence and re-suspended all but
eighteen months of imprisonment. (Id. at 2; see
Id. at 4-5.)
November 27, 2017, counsel filed a Motion for Reconsideration
of Masika's sentence. 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. CR 13-524-05,
CR13-524-06, CR 13-524-07 (Va. Cir. Ct. Nov. 30, 2017).
§ 2254 Petition
December 18, 2016, Masika filed his § 2254 Petition with
this Court. (§ 2254 Pet. 15.) 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 him 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 overturned on appeal. (Id. at
Claim Three: The Commonwealth withheld exculpatory evidence
from Masika's defense. (Id. at 8.)
Claim Four: Masika received a "prejudicial" and
"malicious" sentence for violating his probation.
(Id. at 10.)
moves to dismiss, arguing that the statute of limitations
governing federal habeas petitions bars Claims One, Two, and
Three, and that all four of Masika's claims are
procedurally defaulted. (Br. Supp. Mot. Dismiss 3-6, ECF No.
32.) For the reasons that follow, the Court finds that
Masika's claims are procedurally defaulted and barred
from review here.
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. Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(quoting Duncan v. Henry, 513 U.S. 364, 365-66
(1995)). "To provide the State with the necessary
'opportunity,' 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." Id. Fair presentation demands that
a petitioner present '"both the operative facts and
the controlling legal principles'" 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, 995 (4th Cir. 1994).
Virginia, to exhaust state remedies, a "petitioner must
present the same factual and legal claims raised in the
instant petition to the Supreme Court of Virginia either by
way of (i) a direct appeal, (ii) a state habeas corpus
petition, or (iii) an appeal from a circuit court's
denial of a state habeas petition." Sparrow v. Dir.,
Dep't of Con., 439 F.Supp.2d 584, 587 (E.D. Va.
2006); see also Va. Code Ann. § 8.01-654(A)(1)
(West 2018). "Whichever route the inmate chooses to
follow, it is clear that [the inmate] ultimately must present
his [federal habeas] claims to the Supreme Court of Virginia
and receive a ruling from that court before a federal
district court can consider them." Banks v.
Johnson, No. 3:07CV746-HEH, 2008 WL 2566954, at *2 (E.D.
Va. June 26, 2008) (second alteration added) (quoting
Graham v. Ray, No. 7:05cv00265, 2005 WL 1035496, at
*2 (W.D. Va. May 3, 2005)); see also Sparrow, 439
F.Supp.2d at 587.
distinct but related limit on the scope of federal habeas
review is the doctrine of procedural default."
Breard 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 he or she "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
Coleman, 501 U.S. at 735 n.l). The burden of
pleading and proving that a claim is procedurally defaulted
rests with the state. Jones v. Sussex I State
Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing
cases). Absent a showing of cause and prejudice or a
fundamental miscarriage of justice, this Court cannot review
the merits of a defaulted claim. See Harris v. Reed,
489 U.S. 255, 262 (1989).
Masika's Challenges to his Underlying Convictions (Claims
One, Two, and Three)
Claims One, Two, and Three, Masika challenges his convictions
of forging a check, uttering a forged check, and obtaining
money or property by false pretenses because he alleges that
he was the victim of a malicious prosecution (Claim One),
that the Commonwealth's Attorney and judge were
prejudiced against him (Claim Two), and that the prosecution
withheld exculpatory evidence from his defense (Claim Three).
(§ 2254 Pet. 5-9.) Although Masika appealed these
convictions,  Masika concedes in his § 2254
Petition that he has not raised these three claims before the
Supreme Court of Virginia. (See Id. at 5, 7, 9.)
has not exhausted Claims One, Two, and Three because he has
failed to present these claims to the Supreme Court of
Virginia. If Masika now attempted to present Claims One, Two,
and Three to the Supreme Court of Virginia, that Court would
find the claims procedurally barred pursuant to the rule in
Slayton because Masika could have raised, but failed
to raise, these claims at trial and on direct appeal.
Slayton constitutes an adequate and independent
state procedural rule when so applied. See Mu'Min v.
Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997). Therefore,
Masika has procedurally defaulted his Claims One, Two, and
Three unless he shows cause and prejudice or actual
§ 2254 Petition, Masika appears to fault either trial
counsel or appellate counsel for his failure to raise Claims
One, Two, and Three at trial or on appeal. (See
§ 2254 Pet. 6, 7, 9.) Thus, the Court generously
construes Masika to argue that counsel was the cause for his
default of Claims One, Two, and Three. Although Masika never
raised the substance of his underlying claims through
ineffective assistance of counsel claims in a habeas petition
before the state,  in light of Martinez v. Ryan,566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S.
413 (2013), the fact that Masika had no ...