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Masika v. Chesapeake Circuit Court

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

July 11, 2018



          Roderick C. Young, United States Magistrate Judge.

         Francis Anyokorit Masika, a former Virginia prisoner proceeding pro se, [1]brings this petition pursuant to 28 U.S.C. § 2254 ("§2254 Petition," ECF No. I)[2] 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.


         A. Masika's Criminal Proceedings

         On 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[3] 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.) Masika appealed.

         On 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.

         During 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.)

         B. Probation Violation Proceedings

         On October 27, 2016, Masika entered a plea of nolo contendere to violating conditions of his supervised probation.[4] (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.)

         On 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).

         C. § 2254 Petition

         On December 18, 2016, Masika filed his § 2254 Petition with this Court. (§ 2254 Pet. 15.)[5] 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 7.)
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.)

         Respondent 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.[6]

         II. ANALYSIS

         Before 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. § 2254(c).

         The 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).

         In 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.

         "A 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).[7] 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).

         A. Masika's Challenges to his Underlying Convictions (Claims One, Two, and Three)

         In 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, [8] 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.)

         Masika 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 innocence.

         In his § 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.[9] (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, [10] 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 ...

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