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Khavkin v. Clarke

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

July 24, 2018

DMITRIY KHAVKIN, Petitioner,
v.
HAROLD CLARKE, Respondent.

          MEMORANDUM OPINION

          ROBERT E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE

         Dmitriy 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).[1]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.

         I. PROCEDURAL HISTORY IN STATE COURT

         A. Initial Criminal Proceedings

         A grand 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.)

         On 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.)

         On 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.

         B. State Habeas Proceedings

         Khavkin, 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 petitioner's plea;
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 case;
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. ...


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