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Whittle v. Clarke

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

February 1, 2019

ALVIN BERNARD WHITTLE, #1461521, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard United States Magistrate Judge.

         This matter is before the Court on Petitioner Alvin Bernard Whittle's ("Petitioner") pro se Petition for a Writ of Habeas Corpus ("the Petition") filed pursuant to 28 U.S.C. § 2254. ECF No. 1. The matter was referred to the undersigned United States Magistrate Judge ("undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges.

         FINDINGS OF FACT AND CONCLUSIONS OF LAW

         The pro se Petitioner alleges that his constitutional rights were violated in connection with his November 30, 2012, conviction in the Circuit Court of Mecklenburg County for rape. ECF No. 1. The Petitioner states he was sentenced to serve thirteen years in prison. Id.

         Section 2254 allows a prisoner held in state custody to challenge his detention on the ground that his custody violates the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A state prisoner, however, must exhaust his available state remedies or demonstrate the absence or ineffectiveness of such remedies before petitioning for federal habeas relief in order to give "state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).

         A. Plaintiff has Failed to Exhaust His State Court Remedies

         The Petition indicates that Petitioner did not appeal his conviction to the highest state court. ECF No. 1 at 2 (responding "No" to the questions of "Did you appeal from the judgment of conviction?" and "Did you seek further review by a higher state court?"). Based on the foregoing, it did not appear that there had been an exhaustion of state court remedies in conformity with 28 U.S.C. § 2254(b) and the Court ordered Petitioner to show cause why this matter should not be dismissed for failure to exhaust available state court remedies. ECF No. 2. Petitioner timely responded to the Court's Show Cause Order on March 12, 2018, stating that

I told my attorney that I wanted to appeal my conviction but he just abandon [sic] me[.] After the sentencing hearing was over I was informed that when you accept an Alford plea of guilt you could not appeal your conviction in the supreme court[.] He also refuse [sic] to call [sic] expert witness to testify[.] I do not have legal knowledge to present claims effectively that will grant relief for true justice[.] I completely misunderstood the procedures that are required by law and that is why I did not make the deadline for the state exhaustion and its remedies so I got time-barred.

ECF No. 3 at 1.

         Importantly, "[t]he burden of proving that a claim is exhausted lies with the habeas petitioner." Breard, 134 F.3d at 618. The exhaustion requirement is satisfied if the prisoner seeks review of his claim in the highest state court with jurisdiction to consider it through either direct appeal or post-conviction proceedings, see O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999), and the "essential legal theories and factual allegations advanced in the federal court [are] the same as those advanced at least once to the highest state court," Pruett v. Thompson, 771 F.Supp. 1428, 1436 (E.D. Va. 1991), affd, 996 F.2d 1560 (4th Cir. 1993). It appears from the record that Petitioner has circumvented Virginia's state courts by failing to first present his claims to the Supreme Court of Virginia, and therefore, he has not exhausted his state remedies. This he may not do.

         B. Plaintiffs Claims are both Exhausted and Procedurally Defaulted

         However, "a claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court." Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000). If Petitioner were to raise these issues in a new state habeas petition to exhaust his state post-conviction remedies, he would be procedurally barred because the time for doing so expired on December 30, 2013, one year from the time of final disposition of the direct appeal, in this case when the time to appeal had expired, in state court. ECF No. 1; Va. Code. § 8.01-6735.3 (allowing thirty days after final judgment for a Defendant to appeal); § 8.01-654(A)(2). This situation is presented as simultaneous exhaustion and procedural default, which "occurs when a habeas petitioner fails to exhaust available state remedies and 'the court to which the petitioner would be required to present her claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Breard, 134 F.3d at 619 (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1. (1991)). Thus, if Petitioner now attempted to raise these claims in state court, they would be procedurally barred as untimely under Virginia Code § 8.01-654(A)(2), which provides a one-year statute of limitations after the cause of action accrues. Because "the procedural bar that gives rise to exhaustion is an independent and adequate state ground, [all] of [Petitioner's] claims raised in the instant [P]etition must be treated as simultaneously exhausted and procedurally barred from federal habeas review." Sparrow v. Dir., Dep't of Corr., 439 F.Supp.2d 584, 588 (E.D. Va. 2006); Baker, 220 F.3d at 288 ("[T]he procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim."); Breard, 134 F.3d at 619 ("A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default."). Thus, Petitioner's claim is both exhausted and procedurally defaulted.

         C. Petitioner Cannot Overcome Procedural Default

         This Court may not review the merits of Petitioner's procedurally defaulted claims. However, a petitioner may overcome procedural default by showing cause for the default and the prejudice resulting therefrom, or by showing that a fundamental miscarriage of justice (such as actual innocence) would occur if the court declined to address the merits of his petition. Absent a showing of cause for the default and prejudice or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed,489 U.S. 255, 262 (1989); see also Sparrow, 439 F.Supp.2d at 588 (explaining that "a petitioner may nonetheless overcome procedural default, and have his claims addressed on the merits, by showing either cause ...


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