United States District Court, W.D. Virginia, Roanoke Division
K. Moon Senior United States District Judge
James Givens, a Virginia inmate proceeding pro se,
filed this petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging the validity of his
confinement on a judgment by the Campbell County Circuit
Court (dkt. 1). Respondent filed a motion to dismiss
Givens' § 2254 petition (dkt. 10), and Givens
responded (dkt. 15), making the matter ripe for disposition.
After review of the record, I will grant the motion to
December 27, 2013, the Campbell County Circuit Court entered
a final order convicting Givens, pursuant to an
Alford plea, of object sexual
penetration. In exchange for Givens' plea, a count
of custodial indecent liberties and a count of object sexual
penetration as a second violent felony sex assault were
nolle prossed. The court sentenced Givens to forty
years' imprisonment on the count to which he pled, with
fifteen years suspended. Givens' direct and collateral
appeals were unsuccessful. (See dkt. 17-1 through
Givens' plea hearing, the Commonwealth proffered that the
evidence at trial would have demonstrated that:
[B]etween the dates of January 1, 2012, and March 29, 2012 .
. . [the victim] was seventeen years of age. . . . [S]he had
known Mr. Givens as a-actually told at one point in her life
that it was her father, but by the time this incident took
place [she] knew [he] was not her father, but it was-he was
to pick her up, take her to Roanoke for some quality time
So he picked her up in the car . . . [and he] looked over at
her, actually looked over at her genital area, at her vagina
she would testify, and said I've been thinking about
And as they traveled up [Route] 29 in the county, he reached
over and began to massage the outside of her vagina on top of
her clothes. And while still on 29 in Campbell County up the
road, [he] put his hand inside of her pants  and inserted
his fingers inside of her vagina. . . .
[T]he court has heard some argument on the intimidation
earlier, and we'd ask that we incorporate that argument
to facilitate this guilty plea for purposes of the law of
She would testify that she began knowing [Givens] back when
she was in junior high, some times a little before. At the
end of junior high, she testified that she was in the car
with her mother and Mr. Givens, that Mr. Givens did not like
the way she did not talk to him.
So they went to the house in Vinton. He owned a house in
Vinton and that was before she got into high school, Your
Honor. He then took down a sigma paddle from the home and
began to beat her over twenty to thirty times with a wooden
paddle for her behavior inexplicably. So a severe beating
took place before high school. Then she would testify from
her perspective inexplic[ably], because she had no ties to
Campbell County, she was moved with her mother to a home here
in Campbell County to go to Brookville school where she knew
During the course of those years in high school, Judge, the
following things, she would testify, began happening to her.
She was on her-around fourteen years of age, her freshman
year, brought back to that house in Vinton where she was
told-Mr. Givens was in a chair, she was by herself, Mom was
not with her that weekend, to strip-take all of her clothes
off. She was confused. She went into one room, Judge, came
back in her underwear.
That wasn't good enough for [Givens]. He said I want to
see you completely naked. She was completely confused, very
scared at this point. She was fourteen when it began.
He then went inside and inserted his fingers inside of her in
the bedroom. She was shaking, she recalls, her leg was
shaking. He commented to her, why is your leg shaking. He
said, get dressed and go into the room. She went into the
Later that night, he returned to the bedroom and committed an
act of-she would say, Judge, his finger went inside of her
again, his thumb. Then he said, I won't put, her phrase
was, my dick inside of you.
Guilty Plea Hr'g Tr. at 11-15 (Dec. 17, 2015).
point in the hearing, the Commonwealth asked if the defense
would stipulate to the element of intimidation. Defense
counsel refused, but conceded that the Commonwealth had
established that Givens had beaten the victim and that a
single beating could satisfy intimidation. Id. at
15-16. The Commonwealth continued the proffer:
[S]he would testify that over a period of four years she was
repeatedly forced to have sex. She protested on a couple of
occasions. She had been punched in the chest on multiple
occasions. That was actually-and slapped in the face. She was
told by the defendant that you have to have sex with me or
else I'll be out having to get it on the street.
There was a history that . . . can be physical intimidation
or a relationship between the parties that existed over four
years, or towards the end she would testify and her quote
was, at the end, by the time this incident happened, the
trial, she felt as that was what she existed for, was to
simply satisfy his sexual needs, and that she said there was
no use protesting, it was just going to happen, she had done
it before. And she was afraid of him physically, of his size.
Judge, as well, . . . we would introduce the
nurse saying there [were] injuries to the victim in this case
in the form of scarring in the inside of her vagina.
We would also introduce the prior convictions, Judge, that
she-he had that you heard about.
Id. at 17-18. The court accepted the Alford
plea, concluding that “a strong factual basis”
supported the charge and that Givens entered the plea freely
and voluntarily. Id. at 25, 33. Givens' direct
appeal and subsequent state court habeas petition proved
December 14, 2017, Givens filed the present petition,
alleging the following grounds:
1. Counsel was ineffective for failing to inform Givens of
the nature and direct consequences of an Alford
2. Counsel was ineffective for failing to prepare for trial
or interview and prepare witnesses;
3. Counsel was ineffective for coercing Givens into taking an
Alford plea on the night before the trial was
4. Givens was denied due process when, after viewing the
proffered evidence in the light most favorable to the
Commonwealth, no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
(Dkt. 1.) Respondent acknowledges that Givens' petition
is both exhausted and timely, and I conclude that no claims
are procedurally barred from federal habeas
review. After reviewing the parties'
submissions, I find no need for an evidentiary hearing.
See Rule 8(a), Rules Governing Section 2254 Cases in
the United States District Courts; see also 28
U.S.C. § 2254(e).
STANDARDS OF REVIEW
obtain federal habeas relief under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a petitioner
must demonstrate that he is “in custody in violation of
the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Under 28 U.S.C.
§ 2254(d), however, a federal court may not grant a writ