United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
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), 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.
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
PROCEDURAL HISTORY IN STATE COURT
Initial Criminal Proceedings
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) .
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.)
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.
State Habeas Proceedings
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
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
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.)
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.)
SUBMISSIONS IN THIS COURT
Initial § 2254 Petition
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.)
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"),  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.)
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.)
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:
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)
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. 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. 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.
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 ...