United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING RESPONDENT'S MOTION
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.
Nicholas George, a Virginia inmate proceeding with counsel,
filed this petition for a writ of habeas corpus under 28
U.S.C. § 2254 ("§ 2254 Petition," ECF No.
1) challenging his convictions in the Circuit Court for the
City of Williamsburg and James City County ("Circuit
Court"). Respondent has moved to dismiss. (ECF No. 5.)
George did not file a response. For the reasons that follow,
the Motion to Dismiss will be granted.
a jury trial, the Circuit Court convicted George of rape,
abduction with intent to defile, and forcible sodomy.
Commonwealth v. George, Nos. CR12021946, CR12021947,
CR12021948, at 1 (Va. Cir. Ct. May 7, 2013). The jury
recommended a total sentence of 30 years, the minimum
sentence it could impose. Id; (ECF No. 1, at 2).
Thereafter, the Circuit Court imposed a sentence of 30 years.
Commonwealth v. George, Nos. CR12021946, CR12021947,
CR12021948, at 2 (Va. Cir. Ct. May 7, 2013). George appealed
his convictions. The Court of Appeals of Virginia and the
Supreme Court of Virginia rejected George's appeal.
George v. Commonwealth, No. 150711, at 1 (Va. Dec.
28, 2015); George v. Commonwealth, No. 0034-14-1, at
1 (Va. Ct App. Oct. 30, 2014).
George, by counsel, filed a petition for a writ of habeas
corpus with the Circuit Court wherein he asserted that
counsel had failed to provide effective assistance in
conjunction with a plea offer. Petition for a Writ of Habeas
Corpus at 3, George v. Clarke, No. CL16-2255 (Va.
Cir. Ct. filed Dec. 28, 2016). Following an evidentiary
hearing, the Circuit Court denied George's Petition for a
Writ of Habeas Corpus. George v. Clarke, No.
CL16-2255, at 1 (Va. Cir. Ct. Aug. 2, 2017). George appealed.
The Supreme Court of Virginia refused George's petition
for appeal. George v. Clarke, No. 180154, at 1 (Va.
July 16, 2018).
October 14, 2018, George filed his § 2254 Petition with
this Court wherein he claims he is entitled to relief
Counsel failed to provide adequate advice on the pros and
cons of accepting or rejecting the plea offer. If counsel
had taken the necessary time to fully discuss the pros and
cons of going to trial by jury versus the pros and cons of
taking the plea for aggravated sexual battery, including
complete candor concerning the strength of the evidence for
and mostly against him regarding all the charges and the
likely outcomes, the Petitioner would have accepted the offer
to plead guilty to aggravated sexual battery with the
sentence to be decided by the judge.
(§ 2254 Petition 13 (emphasis omitted).)
APPLICABLE CONSTRAINTS UPON FEDERAL HABEAS REVIEW
obtain federal habeas relief, at a minimum, 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). The Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA") further
circumscribes this Court's authority to grant relief by
way of a writ of habeas corpus. Specifically, "[s]tate
court factual determinations are presumed to be correct and
may be rebutted only by clear and convincing evidence."
Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008)
(citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28
U.S.C. § 2254(d), a federal court may not grant a writ
of habeas corpus based on any claim that was adjudicated on
the merits in state court unless the adjudicated claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). The Supreme Court has emphasized
that the question "is not whether a federal court
believes the state court's determination was incorrect
but whether that determination was unreasonable-a
substantially higher threshold." Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (citing Williams
v. Taylor, 529 U.S. 362, 410 (2000)). Given the
foregoing restrictions, the findings of the Circuit Court
figure prominently in this Court's opinion.
to George's trial, the prosecution offered to dismiss the
pending charges in exchange for George pleading guilty to
aggravated sexual battery. (§ 2254 Pet. 21.) "The
sentencing range for aggravated sexual battery was one to
twenty years under Virginia Code § 18.2-67.3, but
[George's] guidelines would call for a sentence somewhere
between two and six years, with a midpoint around four
year[s] and four months." (Id.) George contends
that if counsel had adequately and forcefully explained to
him the strengths of the prosecution's case and the
weaknesses of George's own testimony, he would have
accepted the plea offer. (Id. at 25-28.) As
discussed below, this is not an instance where the
prosecution's evidence was overwhelming, and a conviction
a near certainty. The victim's persistent pursuit of
George favored the defense's contention that any sexual
activity was consensual. Nevertheless, the jury ultimately
credited the victim's testimony that she did not consent
to having sex of any form with George on the night in
question. Moreover, the record reflects that George was well
aware of the risks of going to trial and was adamant about
his innocence and unwilling to plead guilty to any charge
that would have required him to register as a sex offender.
Summary of the Pertinent Evidence from the Trial
The Prosecution's Evidence
trial, the victim, CF, testified that in 2001, she frequented
the Green Leafe Cafe, the bar where George worked. (May 2,
2013 Tr. 18.) George would sometimes drive CF home if she was
not able to drive herself. (May 2, 2013 Tr. 18.) CF and
George's friendship developed to the point of intimacy
where they had sexual relations five or six times. (May 2,
2013 Tr. 18.) On April 1, 2011, George and CF again had
vaginal intercourse and George tried to persuade CF to have
anal intercourse, but she declined. (May 2, 2013 Tr. 21-22.)
During that incident, George got slightly violent, attempted
to choke CF and bit her in two places. (May 2, 2013 Tr. 21.)
CF told George not to choke her. (May 2, ...