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Khavkin v. Clarke

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

April 12, 2019

DMITRIY KHAVKIN, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Dmitriy Khavkin, a Virginia prisoner proceeding with counsel, brings this SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS under 28 U.S.C. § 2254 ("Second Amended § 2254 Petition," ECF No. 31), [1]Respondent has filed a MOTION TO DISMISS AND RULE 5 ANSWER ("Motion to Dismiss," ECF No. 32). Khavkin filed a BRIEF IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS SECOND AMENDED HABEAS PETITION ("Response," ECF No. 37). The matter is ripe for disposition. Because the record fails to establish conclusively that Khavkin is entitled to no relief, the Court will deny the Motion to Dismiss without prejudice and set the matter for an evidentiary hearing.

         The thrust of Khavkin's allegations are that trial counsel had a conflict of interest and that, as a result, counsel coerced Khavkin to plead guilty. As the Court has previously explained, the task of assessing this claim, and the Motion to Dismiss, has been complicated because of the disjointed, incomplete, and often inconsistent manner in which the claims have been presented throughout the state and federal proceedings.

         I. PROCEDURAL HISTORY IN STATE COURT

         A. Initial Criminal Proceedings

         A grand jury in the Circuit Court for the County of Brunswick, Virginia ("Circuit Court77) charged Khavkin in a five-count Indictment with one count of murder in the first degree in the commission of, or attempt to commit, robbery ("first-degree murder77), one count of make/possess unauthorized weapon capable of death/injury, two counts of attempted robbery, and one count of malicious wounding. Indictment at 1-2, Commonwealth v. Khavkin, Nos. CR13-73-00 through 04 (Va. Cir. Ct. filed Mar. 28, 2013). On May 23, 2013, Joseph D. Morrisey informed the Circuit Court that both he and James T. Maloney would be representing Khavkin, and requested that the Court "not [e] both of us as counsel of record for Mr. Khavkin in these matters.77 Letter at 1, Khavkin, Nos. CR13-73-00 through 04 (Va. Cir. Ct. filed May 23, 2013). Maloney filed a discovery motion as early as July and, in August, he appeared in court on behalf of Khavkin to request a jury trial and to set the trial date. See Letter at 1, Khavkin, Nos. CR13-73-00 through 04 (Va. Cir. Ct. filed July 15, 2013); Khavkin, Nos. CR13-73-00 through 04 (Va. Cir. Ct. Oct. 7, 2013). On October 21, 2013, the Commonwealth gave notice of its intent to introduce at sentencing evidence of Khavkin's six previous felony convictions, including a conviction for robbery, use of a firearm in commission of a felony, and abduction in Stafford County, Virginia in 2009. Notice at 1, Khavkin, Nos. CR13-73-00 through 04 (Va. Cir. Ct. filed Oct. 21, 2013). On December 2, 2013, Morrissey filed a Motion to Continue the December 10, 2013 trial date. Motion to Continue at 1-2, Khavkin, Nos. CR13-73-00 through 04 (Va. Cir. Ct. filed Dec. 2, 2013) .

         On December 5, 2013, Khavkin and the Commonwealth entered into a Plea Agreement, pursuant to which it was agreed that: (1) Khavkin would plead guilty to the lesser offense of second-degree murder (instead of first-degree murder); (2) Khavkin would plead guilty to the lesser offense of assault and batter, a misdemeanor (instead of malicious wounding which is a felony); and (3) Khavkin would plead guilty to one count of attempted robbery. (ECF No. 26-3, at 23.) The Commonwealth agreed to nolle prosequi the charge of make/possess unauthorized weapon capable of death/injury and one count of attempted robbery. (Id.) In the Plea Agreement, the Commonwealth and Khavkin agreed that, in exchange for his guilty pleas, an active sentence of twenty-four years and two months for second-degree murder was appropriate, with no period of incarceration for the attempted robbery or assault and battery convictions. (Id. at 23-24.)

         On December 6, 2013, the Circuit Court sentenced Khavkin to a total of twenty-four years and two months of incarceration based upon the terms of the Plea Agreement. (ECF No. 34-1, at 1-2.) Khavkin filed no appeal.

         B. State Habeas Proceedings

         Khavkin, by counsel James S. Ellenson, filed a petition for a writ of habeas corpus in the Circuit Court. (ECF No. 34-2, at 1, 13.) It is difficult to ascertain the claims that Khavkin raised in the Circuit Court because the habeas petition did not substantially follow the required standardized form for filing habeas petitions in Virginia and failed to set forth numbered claims for relief. In the Motion to Dismiss that was filed in the Circuit Court, Respondent tried to remedy that problem and identified the claims that were filed in the Circuit Court as follows:

a. the trial court was without jurisdiction to accept the petitioner's plea;
b. Petitioner was incapable of entering a voluntary plea due to his incarceration for almost a year in solitary confinement prior to the entry of his plea;
c. Petitioner was abandoned by trial counsel Joe Morrissey, and that co-counsel, James Maloney, was associated without the petitioner's knowledge or consent;
d. trial counsel Maloney coerced petitioner into pleading guilty by telling the petitioner he had no chance to win his case;
e. trial counsel Maloney had a conflict of interest that he never told the petitioner about.

(ECF No. 34-3, 3-4.) The Reply that Khavkin filed in the Circuit Court did not contest Respondent's statement of the claims that he was making, and instead attempted to add new factual allegations. Reply at 1-3, Khavkin v. Clarke, No. CL14-104 (Va. Cir. Ct. filed Feb. 2, 2015). The Circuit Court granted the Commonwealth's Motion to Strike the Reply because Khavkin" [did] not have a statutory right to file a reply" and because his "insertion of additional factual matters is inappropriate at this stage in the proceedings." Khavkin, No. CL14-104, at 1 (Va. Cir. Ct. Apr. 21, 2015). The same day, the Circuit Court denied Khavkin's habeas petition. (ECF No. 34-4, at 1-21.)

         Khavkin appealed to the Supreme Court of Virginia where he presented the following assignments of error:

1. The circuit court erred in denying Khavkin's request for a plenary or evidentiary hearing . . . where the allegations of the illegality of the petitioner's detention could not be fully determined on the basis of recorded matters because factual disputes remained that could not be resolved by merely reading conflicting affidavits. . . .
2. The circuit court erred in denying Khavkin's petition for a writ of habeas corpus, where Khavkin's trial counsel, Joseph D. Morrissey and James T. Maloney, failed to disclose to Khavkin that Maloney had previously represented the alleged victim in Khavkin's trial, William C. Myers, who was the Commonwealth's primary witness against Khavkin, even as Maloney was pressuring Khavkin to plead guilty and asserting he "would guarantee that Khavkin would get life," thus rendering ineffective assistance of counsel under the Sixth Amendment ....

(ECF No. 34-5, at 19.) The Supreme Court of Virginia refused the petition for appeal. (Id. at 1.)

         II. SUBMISSIONS IN THIS COURT

         A. Initial § 2254 Petition

         Khavkin, by counsel, filed a § 2254 petition with this Court. The Respondent moved for dismissal. In its review of the § 2254 Petition and the Motion to Dismiss, the Court determined that the manner in which Khavkin had presented his claims was in disregard of the applicable federal and local rules. That, in turn, frustrated any meaningful analysis of the § 2254 Petition. Therefore, the Memorandum Opinion and Order entered on July 26, 2017, explained that:

In his Brief in Opposition to the Respondent's Motion to Dismiss and Brief in Support ("Brief in Opposition," ECF No. 12), Khavkin first provides a section entitled "Facts Alleged in Petition for Writ of Habeas Corpus" and "Respondent's Statement of Facts" that once again are a narrative tied to no specific claim. Khavkin also provides a significantly expanded legal analysis and different factual allegations with respect to Claims II and III, and for the first time, submits his own affidavit . . . providing new factual allegations not originally included in the initial § 2254 Petition. (ECF No. 12-1, at 1-2; ECF No. 12-2.)

         (ECF No. 21, at 3.) The Memorandum Opinion also noted that, "[e]ven though he significantly expanded and changed his factual allegations, Khavkin failed to sign this Brief in Opposition under penalty of perjury." (Id. n.2.) Finally, the Memorandum Opinion explained as follows:

Rule 2 (d) of the Rules Governing Section 2254 Cases provides that an application for relief under § 2254 "must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule." Rules Governing Section 2254 Cases, R. 2 (d) . Moreover, in the United States District Court for the Eastern District of Virginia, all pro se petitions for writs of habeas corpora must be filed on a set of standardized forms. See E.D. Va. Loc. Civ. R. 83.4(A). "Counsel filing a petition for writ of habeas corpus need not use a standardized form, but any petition shall contain essentially the same information as set forth on said form." Id. (emphasis added). A pro se litigant or an attorney proceeding in this district is required to follow the rules of procedure. See Davidson v. Johnson, No. 3:O8CV4O6, 2008 WL 4159737, at *2 (E.D. Va. Sept. 9, 2008).
The standardized form for filing a § 2254 petition, or "PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY" ("standardized form"), [2] requires that the petitioner set forth each level of appeal he pursued, and the grounds for appeal raised therein, and any post-conviction petitions he may-have filed, the grounds raised therein, and the result of any proceeding. Rules Governing Section 2254 Cases, Appendix of Forms ¶¶ 8-11. The standardized form also requires the inmate to set forth "GROUND ONE" of his petition and then "state the specific facts that support your claim." Id. ¶ 12. The instructions specifically state, to provide" [s] upporting facts (Do not argue or cite law. Just state the specific facts that support your claim)." Id. The inmate must also explain why he did not exhaust his claim in state court. Id. Next, the inmate must identify exactly when and where in state court he raised each individual claim and the result of that filing. Id. An inmate must complete a separate section for each "GROUND" or claim he wishes to raise.
Next, after an inmate sets forth his claims, he must identify whether "all grounds for relief that you have raised in this petition [have] been presented to the highest state court having jurisdiction" and if they have not, the inmate must identify "which grounds have not been so presented and give your reasons(s) for not presenting them." Id. ¶ 13.
Khavkin's § 2254 Petition fails to comply with the directive of the Rules Governing Section 2254 Cases and the local rules that any habeas petition filed by counsel "shall contain essentially the same information as set forth on said form." E.D. Va. Loc. Civ. R. 83.4(A); see Rules Governing Section 2254 Cases, R. 2(d). Khavkin's § 2254 Petition provides a brief procedural history that is devoid of the specific claims that Khavkin raised during his post-conviction proceedings in state court. Khavkin then provides a narrative section entitled "FACTUAL ALLEGATIONS" that is not connected to any of the four claims for relief he later sets forth. In his "CLAIMS" section, Khavkin provides argument and cites law, and provides no "specific facts that support [his] claim[s]," as he must. Rules Governing Section 2254 Cases, Appendix of Forms ¶ 12. Khavkin then fails to identify whether he exhausted each claim or why he failed to exhaust the claim, where he raised the claim, or the result of the filing in state court. Finally, after setting forth each claim, Khavkin once again fails to identify whether he raised these claims before the highest state court having jurisdiction and if not, his reasons for not presenting these claims. Khavkin's § 2254 Petition does not follow a similar format as the standardized form, lacks required information, and quite simply does not "contain essentially the same information as set forth on said form." E.D. Va. Loc. Civ. R. 83.4(A) .
“The proper use of the standardized form for filing a § 2254 petition results in administrative convenience and benefit to both the petitioner and the Court." Davidson, 2008 WL 4159737, at *2. Further, here, Khavkin apparently expects the Court and the Respondent to sift through his narrative to glean a factual basis for his claims. The Court declines to do so. Accordingly, the Court will direct Khavkin, to submit a § 2254 Petition that complies with Eastern District of Virginia Local Civil Rule 83.4(A) and "contains essentially the same information as set forth" on the standardized form for filing a § 2254 Petition in the Eastern District of Virginia. E.D. Va. Loc. Civ. R. 83.4(A).
Moreover, Khavkin significantly expanded the factual allegations in support of his claims in his Brief in Opposition to the Motion to Dismiss. The Court notes that Khavkin must adequately set forth his grounds for relief and those factual allegations in support of his remaining claims in his § 2254 Petition.

(ECF No. 21, at 4-7.) Accordingly, the Court denied the Motion to Dismiss and directed Khavkin to submit an amended § 2254 petition that comported with applicable rules for § 2254 actions. (ECF Nos. 21, 22.)

         Khavkin filed an Amended § 2254 Petition that contained many of the same deficiencies and problems as the initial § 2254 Petition. (ECF No. 23.) Therefore, by Memorandum Opinion and Order entered on July 24, 2018, the Court again denied the Motion to Dismiss and directed Khavkin to submit a second amended § 2254 petition that comported with the Court's directives. (ECF Nos. 29, 30.)

         B. The Second Amended § 2254 Petition

          Khavkin filed the Second Amended § 2254 Petition that is now before the Court. (ECF No. 31.) In the petition, Khavkin raises the following claims for relief:[3]

Claim I: "Petitioner was denied the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, because his counsel had a conflict of interest, which neither defense counsel, nor the prosecutor brought to the Court's attention, and which caused his counsel to compel him to waive his right to trial and plead guilty." (Id. at 5) (emphasis added).
Claim II: “Petitioner was denied the effective assistance of counsel because his conflicted counsel coerced him into a guilty plea and provided him with erroneous advice as to the consequences of a guilty plea, all in violation of the Sixth and Fourteenth Amendments to the United States Constitution," (Id. at 10) (emphasis added)
Claim III: “Petitioner was denied the effective assistance of counsel because his counsel provided erroneous advice as to the consequences of a guilty plea, in violation of the Sixth and Fourteenth Amendments to the United States Constitution." (Id. at 12) (emphasis added)

         To begin, it appears that the second clause of Claim III is the same as the second clause of Claim II. Moreover, there is little improvement in the Second Amended § 2254 Petition, in part, because the allegations in the Second Amended § 2254 Petition remain vague. Although Khavkin has now inserted claim numbers into the narrative section of factual allegations, these seem not to be logically placed. And, once again, the asserted facts offered in support of the claims are scattered throughout the Second Amended § 2254 Petition.[4] Therefore, it is difficult to discern where one claim ends and another begins, complicating the assessment of the application of procedural bars for three distinct claims.[5] The Second Amended § 2254 Petition also contains no legal argument which also complicates the ability of both the Respondent and the Court to understand and analyze the substance of Khavkin's claims.

         This state of affairs leaves but two options: (1) require a Third Amended § 2254 Petition; or (2) proceed with analysis and do the best that can be done. The second ...


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