United States District Court, E.D. Virginia, Alexandria Division
REPORT AND RECOMMENDATION
Michael S. Nachmanoff United States Magistrate Judge.
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.
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.
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. 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. 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.
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.
April 30, 2018, petitioner timely 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).
Standard of Review
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).
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
“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).
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.