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Hall v. Clarke

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

September 3, 2019

Kenneth C. Hall, Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          Anthony J. Trenga United States Distinct Judge

         Kenneth Carlos Hall ("Hall" or "petitioner"), a Virginia inmate proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his trial and conviction were plagued by reversible error. On December 13, 2018, respondent, through counsel, filed a Motion to Dismiss and Rule 5 Answer supported by a legal brief and documentary exhibits. Dkt. Nos. 13-15. Petitioner later filed two oppositions to respondent's Motion. Dkt. Nos. 20, 22. For the reasons outlined below, respondent's Motion to Dismiss will be granted, and the underlying petition for writ of habeas corpus will be dismissed.

         I. Background

         On April 10, 2014, a judge of the Circuit Court of Loudoun County found petitioner guilty of possession of burglarious tools and felony petit larceny, third or subsequent offense.[1]Dkt. No. 15-1. On September 24, 2014, the Circuit Court imposed upon Hall a sentence of fifteen years imprisonment with ten years and seven months of that period suspended, resulting in an active sentence of four years and five months. Id.

         Hall did not timely appeal his convictions. Record No. 151459. Instead, he filed actions in this Court and in the Supreme Court of Virginia. First, on September 19, 2014, petitioner filed a petition for a writ of habeas corpus in this Court. See No. 1: 14cv1255 (AJT/TRJ). The action was dismissed based on petitioner's failure to exhaust state remedies. See id., Dkt. No. 3. Then, on September 21, 2015, Hall filed in the Supreme Court of Virginia a petition for a writ of habeas corpus, raising four claims. Record No. 151459. On June 20, 2016, the state supreme court granted the writ solely as to the issue of petitioner's right to directly appeal his conviction out-of-time. Id. It dismissed the remaining three claims without prejudice to Hall's right to later refile a second petition.[2] Id.

         Pursuant to the writ granted by the Supreme Court of Virginia, on September 16, 2016,, petitioner, representing himself, filed a delayed direct appeal in the Court of Appeals of Virginia, raising the following grounds:

1.) The trial court erred in denying Mr. Hall's Motion to Suppress and refusing to hear or rule on Mr. Hall's Supplement [sic] Motion to Suppress....
2.) The trial court erred in denying Mr. Hall's verbal motion for recusal....
3.) The trial court erred in denying Mr. Hall his right to counsel for an appeal....
4.) The trial court erred in denying Mr. Hall's first motion to set aside judgment....
5.) The trial court erred in admitting video evidence that was incomplete....
6.) The trial court erred in admitting evidence that had not been tested as ordered by the court....
7.) The trial court erred in restricting Mr. Hall from cross-examining the Commonwealth's only alleged eye witness with respect to his conflicting and inconsistent statements [regarding a peg hook security device]....
8.) The trial court erred in restricting Mr. Hall from cross-examining the only alleged witness for the Commonwealth with respect to his conflicting and inconsistent statements [regarding defendant's actions within a Target store]....
9.) The trial court erred in using hearsay evidence for the truth of a matter asserted [in determining Mr. Hall's guilt]....
10.) The trial court erred in denying Mr. Hall's Motion to Dismiss....

Record No. 1544-16-4. Through a per curiam order dated April 5, 2017, the Court of Appeals denied Hall's appeal. Id.[3] On May 22, 2018, the Supreme Court of Virginia refused the petition for appeal.[4] Record No. 171159. Having unsuccessfully pursued several claims on direct appeal, petitioner filed the petition currently at issue, raising the following eight claims:

1.) "Malicious prosecution; conspiracy to suborn perjury" in that "the record evidence shows that the only alleged eyewitness for the Commonwealth prosecution gave law-enforcement materially false statement and then came to court and gave the same materially false statement at the preliminary hearing" regarding Hall's use of an "S3 key."
2.) "Malicious prosecution; conspiracy to suborn perjury" in that Deputy Leonard falsely testified about whether Hall was "found to be ... in possession of a [burglarious] tool" and relied on such false information in the affidavit in support of an arrest warrant for petitioner.
3.) "Prosecutorial misconduct" occurred when the Commonwealth's prosecutor pursued charges against him based on false claims by a store employee and when the employee repeated those false claims on the stand.
4.) "Insufficient Evidence for Probable Cause" as to charges of possession of burglarious tools ...

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