United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
Khavkin, a Virginia prisoner proceeding with counsel, brings
this AMENDED PETITION FOR WRIT OF HABEAS CORPUS under 28
U.S.C. § 2254 ("Amended § 2254 Petition,"
ECF No. 23).Respondent has moved to dismiss, and
Khavkin has responded. Once again, the Court attempted to
review the § 2254 Petition and the RESPONDENT'S
MOTION TO DISMISS AND RULE 5 ANSWER ("Motion to Dismiss,
ECF No. 24). The thrust of Khavkin's allegations are that
trial counsel had a conflict of interest and that conflict
caused counsel to coerce Khavkin into pleading guilty. The
task of assessing this claim, and the Motion to Dismiss, has
been complicated because of the disjointed, incomplete, and
often inconsistent manner in which the claims have been
presented throughout the state and federal proceedings. As
discussed below, the Motion to Dismiss will be denied without
prejudice. Khavkin will be directed to submit a Second
Amended § 2254 Petition that comports with applicable
rules for such actions.
PROCEDURAL HISTORY IN STATE COURT
Initial Criminal Proceedings
jury in the Circuit Court for the County of Brunswick,
Virginia ("Circuit Court'') charged Khavkin in a
five-count Indictment with one count of murder in the first
degree in the commission of, or attempt to commit robbery
("first-degree murder"), one count of make/possess
unauthorized weapon capable of death/injury, two counts of
attempted robbery, and one count of malicious wounding.
Indictment at 1-2, Commonwealth v. Khavkin, Nos.
CR13-73-00 through 04 (Va. Cir. Ct. filed Mar. 28, 2013). On
May 23, 2013, Joseph D. Morrisey informed the Circuit Court
that both he and James T. Maloney would be representing
Khavkin, and requested that the Court "not[e] both of us
as counsel of record for Mr. Khavkin in these matters."
Letter at 1, Khavkin, Nos. CR13-73-00 through 04
(Va. Cir. Ct. filed May 23, 2013.) Maloney filed a discovery
motion as early as July and appeared in court in August for
Khavkin to request a jury and to set the trial date.
See Letter at 1, Khavkin, Nos. CR13-73-00
through 04 (Va. Cir. Ct. filed July 15, 2013);
Khavkin, Nos. CR13-73-00 through 04 (Va. Cir. Ct.
Oct. 7, 2013). On October 21, 2013, the Commonwealth filed a
Notice of its intent to introduce evidence of Khavkin's
six prior felony convictions at sentencing, including a
conviction for robbery, use of a firearm in commission of a
felony, and abduction in Stafford County, Virginia in 2009.
Notice at 1, Khavkin, Nos. CR13-73-00 through 04
(Va. Cir. Ct. filed Oct. 21, 2013.) On December 2, 2013,
Morrissey filed a Motion to Continue the December 10, 2013
trial date. Motion to Continue at 1-2, Khavkin, Nos.
CR13-73-00 through 04 (Va. Cir. Ct. filed Dec. 2, 2013.)
December 5, 2013, Khavkin entered into a Plea Agreement,
pursuant to which the Commonwealth agreed to allow Khavkin to
plead guilty to the lesser offense of second-degree murder,
instead of first-degree murder, and to allow Khavkin to plead
guilty to the lesser offense of assault and battery, a
misdemeanor, instead of malicious wounding which is a felony.
(ECF No. 26-3, at 23.) Khavkin also pled guilty to one count
of attempted robbery. (Id.) The Commonwealth also
agreed to nolle prosequi the charge of make/possess
unauthorized weapon capable of death/injury and one count of
attempted robbery. (Id.) In the Plea Agreement, the
Commonwealth and Khavkin agreed that, in exchange for his
guilty pleas, an active sentence of twenty-four years and two
months for second-degree murder was appropriate, with no
active time for the attempted robbery or assault and battery
convictions. (Id. at 23-24.)
December 6, 2013, the Circuit Court sentenced Khavkin to a
total of twenty-four years and two months of incarceration
based upon the terms of the Plea Agreement. (ECF No. 26-1, at
1-2.) Khavkin filed no appeal.
State Habeas Proceedings
by counsel James S. Ellenson, filed a petition for a writ of
habeas corpus in the Circuit Court. (ECF No. 26-2, at 1, 13.)
It is difficult to ascertain the claims that Khavkin raised
in the Circuit Court because the habeas petition does not
substantially follow the required standardized form for
filing habeas petitions in Virginia and fails to set forth
numbered claims for relief. However, the Motion to Dismiss
the state habeas petition identified the claims as follows:
a. the trial court was without jurisdiction to accept the
b. Petitioner was incapable of entering a voluntary plea due
to his incarceration for almost a year in solitary
confinement prior to the entry of his plea;
c. Petitioner was abandoned by trial counsel Joe Morrissey,
and that co-counsel, James Maloney, was associated without
the petitioner's knowledge or consent;
d. trial counsel Maloney coerced petitioner into pleading
guilty by telling the petitioner he had no chance to win his
e. trial counsel Maloney had a conflict of interest that he
never told the petitioner about.
(ECF No. 26-3, 3-4.) Khavkin's Reply in the state habeas
case did not contest that the Respondent had correctly
summarized the claims that had been raised in the state
habeas petition. Instead, Khavkin attempted to add new
factual allegations. Reply at 1-3, Khavkin v.
Clarke, No. CL14-104 (Va. Cir. Ct. filed Feb. 2, 2015) .
The Circuit Court granted the Commonwealth's Motion to
Strike the Reply because Khavkin "[did] not have a
statutory right to file a reply" and because his
"insertion of additional factual matters is
inappropriate at this stage in the proceedings."
Khavkin, No. ...