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Galloway v. Clarke

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

November 13, 2018

Lawrence Glenn Galloway, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          LIAM O'GRADY, UNITED STATES DISTRICT JUDGE

         Lawrence Glenn Galloway, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions in the Circuit Court of Northampton County. Respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Dkt. Nos. 8-10. Petitioner was given the opportunity to file responsive materials pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. Dkt. No. 11. Petitioner filed a Traverse to Respondent's Motion to Dismiss as well as an affidavit. Dkt. Nos. 17-18. The matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.

         I. Background

         The record reflects the following. Petitioner is detained pursuant to a final judgment of the Circuit Court of Northampton County, entered July 28, 2014, and amended on August 4, 2014. Commonwealth v. Galloway, Nos. CR13000175-01, -02, -03, -07. Petitioner was convicted by a judge of one count of driving under the influence ("DUI") (third or subsequent offense), in violation of Virginia Code § 18.2-266/270, one count of refusal to take a breathalyzer, in violation of Virginia Code § 18.2-268.3, one count of driving on a DUI related revoked license, in violation of Virginia Code § 46.2-301, and one count of failure to provide proof of insurance, in violation of Virginia Code § 46.2-902.1. Id. Petitioner was sentenced to seven years and six months imprisonment with no time suspended. Id.

         Petitioner pursued a direct appeal to the Court of Appeals of Virginia, which was denied on August 25, 2015. Record No. 1593-14-1. On direct appeal, the Court of Appeals of Virginia stated the facts as follows.[1]

[T]he evidence proved that on May 31, 2013, at approximately 8:42 p.m., Trooper Brian Kennedy of the Virginia State Police was dispatched to an accident scene. When he arrived, he saw 'Hire tracks and yaw marks" where a vehicle "had run off the road to the right into a ditch, way overcorrected to the left causing the vehicle to roll over and run down the road upside down on its roof." When Trooper Kennedy approached the scene, he saw several open containers of Colt 45 beer in and around the vehicle.
The emergency medical technicians (EMTs) were assisting two people, [petitioner] and his wife, who were in the accident. [Petitioner] told Trooper Kennedy that he "was driving and went off the road into a ditch because of a deer, lost control and flipped." Trooper Kennedy described [petitioner's] speech as "very loud and slurred." Trooper Kennedy also noticed that [petitioner] was disheveled and had "bloodshot eyes, glassy eyes." While speaking with [petitioner], Trooper Kennedy had to repeat himself because [petitioner] looked at him "with a blank stare." [Petitioner] had an injury on the side of his face and was transported to the hospital.
Peter Surran was the EMT who travelled with [petitioner] in the ambulance to the hospital. Surran said that [petitioner's] injury was on the right side of his head and the bleeding was "controlled by a dressing." Surran testified that he smelled an odor of alcohol coming from [petitioner's] person and on his breath. [Petitioner] told Surran that he was driving at the time of the accident.
Trooper Kennedy interviewed [petitioner] at the hospital. Kennedy described [petitioner] as being "very cooperative, very nice; and then he would get loud and then draw back." The trooper said it was like "a seesaw effect." Trooper Kennedy said that [petitioner] "had a strong odor of alcohol emanating from his person. His eyes were bloodshot and watery." [Petitioner] admitted to Trooper Kennedy that he was driving and ran off the road. When asked how much he had to drink, [petitioner] responded that he had three or four beers. He also told Kennedy that he was taking blood pressure medicine.
Trooper Kennedy administered a horizontal gaze nystagmus (HGN) test. All six indicators of impairment were present. [Petitioner] refused field sobriety tests and a breath or blood test. After Trooper Kennedy arrested him for driving under the influence, [petitioner] denied driving. Upon signing the summons, [petitioner] left the hospital and walked home.
[Petitioner] testified that he recently found out that he lost his job and was later hospitalized for suicidal thoughts. He had been taking medication for his stomach and to stop smoking. When asked by the court, [petitioner] said that he was not supposed to consume any alcohol while taking this medication.

Id. (footnote omitted). In his direct appeal, petitioner claimed that the evidence was insufficient to convict him of DUI. Id. The Supreme Court of Virginia refused the petition for appeal on July 13, 2016. Record No. 151850.

         After pursuing his direct appeal, petitioner timely filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. Record No. 170601. Petitioner asserted the following claims in his state habeas corpus petition.

1. Violation of petitioner's right to a speedy trial.
2. The trial court erred in preventing petitioner from presenting a witness whose testimony would have been beneficial to his defense.
3. Trial counsel was ineffective because she failed to investigate petitioner's mental health.
4. Trial counsel was ineffective because she failed to interview and call as witnesses petitioner's treating physician and medical staff from the hospital where petitioner was treated after the accident.
5. Violation of petitioner's rights pursuant to Miranda v. Arizona.
6. The evidence was insufficient to convict petitioner for failing to wear a seatbelt.
7. Trial counsel was ineffective because she failed to adequately investigate and present mitigating evidence at sentencing.
8. The evidence was insufficient to convict petitioner of driving while uninsured.
9. Trial counsel was ineffective because she failed to develop and present an insanity defense.

Id. The Supreme Court of Virginia dismissed the state habeas petition on October 20, 2017. Id.

         On March 9, 2018, petitioner filed the instant federal petition, wherein he challenges his convictions on the following grounds.

1(a). The evidence was insufficient to support his conviction of violating Virginia Code § 46.2-901.[2]
1(b). Petitioner is actually innocent of violating Virginia Code § 46.2-902.1, and therefore, counsel was ineffective for not challenging the state's evidence.
2. Trial counsel was ineffective because she failed to conduct an adequate investigation into and presentation of mitigating evidence during the penalty phase, including presenting qualified witnesses.

See Dkt. No. 1.

         II. Procedural Bar, Exhaustion, and Default

         A. Claim 1(a)

         In Claim 1(a) petitioner asserts that there was insufficient evidence to convict him of violating Virginia Code § 46.2-901, however, petitioner was not convicted of violating that statute. Rather, petitioner was convicted of violating Virginia Code § 46.2-902.1, for failing to provide proof that the vehicle he was driving was insured. Because petitioner's arguments supporting Claim 1(a) all relate to providing proof of insurance, Claim 1(a) will be taken as asserting that there was insufficient evidence to convict petitioner of violating Virginia Code § 46.2-902.1.[3]

         Where a state court has made an express determination of procedural default, the state court's finding is entitled to a presumption of correctness, provided two foundational requirements are met. See 28 U.S.C. § 2254(d); Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988). First, the state court must explicitly rely on the procedural ground to deny petitioner relief. See Ylst v. Nunnemaker, 501 U.S. 797, 802-03 (1991); Harris v. Reed. 489 U.S. 255, 259 (1989). Second, the state procedural rule used to default petitioner's claim must be an independent and adequate state ground for denying relief. See Harris, 489 U.S. at 260; Ford v. Georgia, 498 U.S. 411, 423-24 (1991). When these two requirements have been met, federal courts may not review the barred claim absent a showing of cause and prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris, 489 U.S. at 260.

         The state habeas court held that petitioner's instant Claim 1(a) was "barred because [this] non-jurisdictional issue[] could have been raised at trial and on direct appeal and, thus, [is] not cognizable in a petition for a writ of habeas corpus. [Slayton v. Parrigan,215 Va. 27, 29, 205 ...


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