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Noce v. Clarke

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

October 30, 2018

CARL DOUGLAS NOCE, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          REPORT AND RECOMMENDATION

          Michael S. Nachmanoff United States Magistrate Judge.

         Petitioner Carl Douglas Noce (“petitioner” or “Noce”), a Virginia inmate, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions entered in the Circuit Court for the Isle of Wight County on April 30, 2018 (Dkt. No. 1). On May 31, 2018, respondent Harold W. Clarke, Director of Virginia Department of Corrections (“respondent” or “Clarke”), filed a Motion to Dismiss, Rule 5 Answer, and supporting brief (Dkt. Nos. 5-7), and waived hearing on the motion and answer (Dkt. No. 13). On June 19, 2018, petitioner filed a Reply to the Motion to Dismiss (Dkt. No. 10). As the parties have fully briefed the issues presented and neither oral argument nor an evidentiary hearing would aid the decisional process, respondent's motion and answer are ripe for disposition. For the reasons stated below, the undersigned Magistrate Judge recommends that the motion to dismiss be granted and that the petition be dismissed with prejudice.

         I. Procedural History

         A summary of the factual and procedural history of the case places petitioner's motion in context. Petitioner raped his daughter numerous times between August 16, 1998 and February 16, 2001, when his daughter was between fifteen and seventeen years old. Carl Douglas Noce v. Virginia, No. 2135-31-1 (July 1, 2014) 2. The victim stated that they had sexual intercourse between five and six times per week during this period. Id. Although the victim could not “remember specifics” about particular dates because it was such a common occurrence at home, she identified three specific days between 1998 and 2001 that petitioner raped her: on her birthday, August 16, on his birthday, February 16, and on Christmas, December 25, because it was those days that petitioner “felt…either that's what [the victim] wanted, or what [the victim] would like for him to give as a gift on those days, birthdays, and Christmas.” Id. Due to the multiple rapes, the victim contracted genital herpes from petitioner when she was “between sixteen and seventeen.” Id. The victim was later diagnosed with dissociative identity disorder, or spilt personality disorder, which required her to “recover these memories” through counseling beginning in 2007. Id. In September 2012, the victim reported these previous incidents of incestuous rape. Id.

         On December 12, 2012, petitioner was indicted on nine counts of incest with a child between thirteen and eighteen years of age, in violation of Virginia Code § 18.2-366(B), Pet. (Dkt. No. 1) ¶ 2, and was arraigned on those counts on May 8, 2013, id. at ¶ 3.[1] Following a bench trial on May 8, 2013 in the Circuit Court for the Isle of Wight County, petitioner was found guilty on all nine counts and was sentenced to 180 years imprisonment with 160 years suspended. Resp. Br., Ex. A (Dkt. No. 7-1) 1-2.[2] Petitioner appealed his convictions to the Court of Appeals of Virginia on March 5, 2015, arguing that the evidence was insufficient to prove that the offenses “occurred on the dates alleged in the indictments.” Resp. Br., Ex. B (Dkt. No. 7-2) 1. On July 1, 2014, the court denied petitioner's appeal by holding that the “evidence was more than sufficient to prove that [petitioner] raped his daughter on multiple occasions between 1998 and 2001, ” but “[e]ven if there were a lack of certainty as to the dates on which the offenses occurred, it would be reasonable for the trial court to conclude that [petitioner] committed incest with a child between thirteen and eighteen years of age on at least nine occasions during the time alleged in the indictment.” Id. at 6. A three-judge panel denied petitioner's motion for rehearing on October 15, 2014. Resp. Br., Ex. D (Dkt. No. 7-4) 2. The Supreme Court of Virginia refused petitioner's petition for an appeal on May 27, 2015, and he did not petition for a rehearing. Pet. (Dkt. No. 1) ¶ 20.

         After pursuing a direct appeal, petitioner timely filed a petition for a writ of habeas corpus in the Circuit Court for the Isle of Wight County on May 26, 2016, challenging his confinement and alleging ineffective assistance of counsel because “[t]rial counsel was ineffective for failing to investigate, challenge pretrial, and challenge at trial the admissibility of [the victim's] ‘recovered' memories.” Resp. Br., Ex. D (Dkt. No. 7-4) 2-3. On May 23, 2017, the circuit court dismissed the petition. Id. at 1-12. Petitioner appealed the circuit court's decision to the Supreme Court of Virginia, which denied the appeal on November 3, 2017. Pet. (Dkt. No. 1) ¶ 21. On November 6, 2017, petitioner filed a petition for a rehearing, which was denied on February 2, 2018. Resp. Br., Ex. E (Dkt. No. 7-5) 1-2.

         On April 30, 2018, petitioner timely[3] filed the instant petition for writ of habeas corpus seeking to overturn his convictions on the same grounds alleged in his state habeas petition, mainly that trial counsel was ineffective for failing to investigate and challenge the admissibility of the victim's recovered memories. Specifically, petitioner alleges that had his trial counsel challenged the victim's testimony, the government would have been required to present expert testimony regarding the reliability of the victim's recovered memories. Petitioner further alleges that such testimony would have demonstrated that the memories were unreliable, and the trial court would have then excluded the victim's testimony. Pet. (Dkt. No. 1) ¶ 62. On May 31, 2018, respondent filed a Motion to Dismiss and Rule 5 Answer (Dkt. Nos. 5 and 6) with a supporting brief (Dkt. No. 7), to which petitioner filed a reply on June 19, 2018 (Dkt. No. 10).

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“ADEPA”) sets several limitations on the power of federal courts to grant applications for writs of habeas corpus on behalf of state-court prisoners. If an application includes a claim that has been “adjudicated on the merits in State Court proceedings, ” a federal court may not grant a state prisoner's habeas petition unless the relevant state-court decision (1) “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) “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)(1)-(2).

         Petitioner challenges the Supreme Court of Virginia's decision under the first prong, set forth in § 2254(d)(1). Whether a state-court decision is “contrary to” or “an unreasonable application of” federal law is based on an independent review of each standard. See Williams v. Taylor, 529 U.S. 362, 385-86 (2000). A state-court decision is “contrary to” clearly established federal law if it “arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Court's].” Id. at 405 (citations omitted). A state-court decision involves “an unreasonable application” of federal law if it “identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case, ” or “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.

         The “difficult to meet” and “highly deferential” standard set forth in § 2254(d) requires that state-court decisions be given the benefit of the doubt. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted); see also Lenz v. Washington, 444 F.3d 295, 299 (4th Cir. 2006) (“The required deference encompasses both the state court's legal conclusions and its factual findings.”). The petitioner carries the burden of proof and “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

         III. Analysis

         The subject of the present § 2254 federal habeas review is the Supreme Court of Virginia's May 23, 2017 decision denying petitioner's habeas corpus petition. The petition before this Court argues for a de novo standard of review and raises an ineffective assistance of counsel claim, each of which is addressed in turn.

         A. De ...


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