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Washington v. Clarke

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

March 18, 2019

TORREY LAVELL WASHINGTON, Petitioner,
v.
HAROLD W. CLARKE, Director, Virginia Dept. of Corrections, Respondent.

          FINAL ORDER

          MARK S. DAVIS CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner, a Virginia inmate, submitted a pro se petition, pursuant to 28 U.S.C. § 2254. ECF No. 1. The Petition alleges violations of federal rights pertaining to Petitioner's convictions in the Circuit Court for the City of Virginia Beach for two counts of abduction, armed statutory burglary, armed robbery of a residence, conspiracy to commit robbery, use of a firearm in the commission of robbery, and two counts of use of a firearm during the commission of abduction. Specifically, Petitioner raised the following claims:

(a) Trial counsel was ineffective when he (1) failed to make a timely motion for a mistrial or request a "full" cautionary instruction after the prosecutor made an improper argument regarding the petitioner's failure to present evidence in his defense; (2) failed to make a timely motion for a mistrial or request a cautionary instruction after the prosecutor improperly bolstered the credibility of a witness;
(b) Appellate counsel was ineffective when his assignment of error did not encompass the question of whether ... (1) the fingerprint on the door did not belong to Petitioner; (2) Petitioner's fingerprint could have been left on the door at a time other than during the commission of the crime; and
(c) The evidence was insufficient (1) to prove that it was Petitioner's fingerprint on the exterior of the victims' door; (2) for a finding of guilt because a single fingerprint is not sufficient.

ECF No. 1 at 4-13; see also Report and Recommendation, ECF No. 20 at 5. As a result of the convictions, Petitioner was sentenced on August 28, 2013 to serve thirty-three years and twelve months in the Virginia penal system.

         The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The Report and Recommendation, filed October 15, 2018, recommends dismissal of Claims (a)(1) and (c) of the Petition on the merits. The Report and Recommendation further recommends dismissal of Claims (a)(2) and (b) because Petitioner has failed to exhaust these claims in state proceedings, and has now procedurally defaulted on the claims. ECF No. 20. Each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. On November 1, 2018, the Court received Petitioner's objections to the Report and Recommendation. ECF No. 21.[1]

         The Court, having reviewed the record and examined the objections filed by Petitioner to the Report and Recommendation, and having made de novo findings with respect to the portions objected to, does hereby adopt and approve the findings and recommendations set forth in the Report and Recommendation filed October 15, 2018 with respect to Claims (a)(1), (b), and (c).

         A. Claim (a)(2)-Ineffective Assistance of Trial Counsel

         1. Exhaustion

         "In the interest of giving the state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing, a state prisoner must exhaust all available state remedies before he can apply for federal habeas relief." Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998); Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997) ("To exhaust state remedies, a habeas petition must fairly present the substance of his claim to the state's highest court.")- With respect to Claim (a)(2), for the following reasons, the Court finds that Petitioner has exhausted his remedies in state court.

         On June 27, 2016, Petitioner filed a Petition for Writ of Habeas Corpus before the Virginia Supreme Court, ECF No. 17, Ex. 3 ("State Habeas Petition"). In the State Habeas Petition, Petitioner argues that trial counsel was ineffective as:

In trial[J said counsel did not make a timely motion for mistrial[, ] means making the motion when the objectional [sic] words were spoken. ... If counsel believes that an argument requires or justifies a mistrial he has the duty to move promptly before conclusion of the argument so the trial court may determine what corrective action, if any, should be taken[.] Said counsel did not seek a cautionary instruction or make immediate motion for a new trial. Counsel waived this issue because he told the trial court he was not seeking a mistrial.

ECF No. 17, Ex. 3 at 8 (quotations and citations omitted). This claim regarding performance of trial counsel is admittedly vague. Both the Virginia Supreme Court and the Report and Recommendation found this claim referred to the trial counsel's failure to make a motion for a mistrial after the prosecutor noted in her closing argument that Petitioner's fingerprint expert did not testify (i.e. Claim (a)(1) in the instant petition). However, the Court is "compelled . . because [the habeas petition] was prepared pro se, to construe it liberally." McNair v. McCune,527 F.2d 874, 875 (4th Cir. 1975). Giving it a liberal construction, the Court finds that the claim may also refer to trial counsel's failure to move for a mistrial after the prosecutor inappropriately bolstered the credibility of her own witness, telling the jury that the witness was "honest." Trial Tr. at 701-02. Petitioner argues in his State Habeas Petition that trial counsel was ineffective for not moving for a mistrial when objectionable statements by the prosecutor were made. This may refer to either the prosecutor noting that Petitioner's fingerprint expert did not testify or the prosecutor bolstering the credibility of her witness. That the claim also refers to the prosecutor bolstering the credibility of her witness is also evidenced by the sentence "[s]aid counsel did not seek a cautionary instruction or make immediate motion for a new trial." ECF No. 17, Ex. 3 at 8. During her closing argument, the prosecutor first noted that Petitioner's expert did not testify; defense counsel objected and requested a cautionary instruction. The trial court sustained the objection and gave a cautionary instruction. Trial Tr. at 696-697. Later, the prosecutor stated her witness was "honest." Id. at 701-02. Trial counsel objected, but did not seek a cautionary instruction; the trial judge sustained the objection and told the prosecutor that type of argument would not be ...


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