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Givens v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

January 30, 2019

ROGER JAMES GIVENS, Petitioner,
v.
HAROLD CLARKE, Respondent.

          MEMORANDUM OPINION

          Norman K. Moon Senior United States District Judge

         Roger 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 dismiss.

         I. BACKGROUND

         On December 27, 2013, the Campbell County Circuit Court entered a final order convicting Givens, pursuant to an Alford plea, of object sexual penetration.[1] 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 17-4.)

         At 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 together.
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 that.
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 intimidation.
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 no one.
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 other bedroom.
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).

         At this 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 SANE[2] 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.[3]

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 unsuccessful.

         II. PETITIONER'S CLAIMS

         On 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 plea;
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 scheduled; and
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.[4] 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).

         III. STANDARDS OF REVIEW

         To 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 ...


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