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Moseley v. Clark

United States District Court, E.D. Virginia

September 5, 2019

JOSHUA CHARLES LOVELL MOSELEY, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge.

         Joshua Charles Lovell Moseley, a Virginia inmate proceeding pro se, submitted a 28 U.S.C. § 2254 petition (hereinafter "§ 2254 Petition," ECF No. 1) challenging his 2013 conviction in the Circuit Court of the City of Hampton, Virginia (hereinafter "Circuit Court") of two counts of burglary and two counts of grand larceny. The Court understands that, in his § 2254 Petition, Moseley argues that he is entitled to relief on the following grounds:[1]

Claim One: Appellate counsel rendered ineffective assistance when Moseley "reached out to him numerous times and he didn't respond" and then refused "to remove himself from [Moseley's] case" when Moseley wanted to proceed pro se and instead, "chose to handle [Moseley's] entire case and oral argument without [Moseley]." (§ 2254 Pet. 5.)
Claim Two: Appellate counsel rendered ineffective assistance because he failed to notify Moseley that the Supreme Court of Virginia had issued its opinion causing Moseley to miss the deadline for filing a petition for rehearing on the basis that the Supreme Court of Virginia "used a murder case in a grand larceny case where totality standards are different." (Id. at 7 .)
Claim Three: Appellate "counsel was deficient . . . because [he] was unaware of controlling law. He paraphrase[d] the most important law in grand larceny cases [that] . . . [n] o matter how much incriminating evidence you have you must show that the accused had possession or knowledge of stolen goods, yet he simply stated you must show possession[.] However, with the full quote, [i] t prohibits the VA Supreme Court['s] use of a murder case where standards are different [and] my lawyer was unaware of such." (Id. at 8.)
Claim Four: "Denial of Fourteenth Amendment (Protection and Equality). The Supreme Court defines two categor[ies] in which a state prisoner may gain habeas relief. One: The defendant must show that the state and Supreme Court arrived at two different conclusion or question of law (in the lower Court of Appeals and Supreme Court arrived at two different conclusion[s] using different laws in my case) . Two: If the court uses a law that ha[s] different governing legal principles: A murder case was used in a larceny case where standards are different. In my case, it [was] about possession not probability." (Id. at 10.)

         Respondent has filed a MOTION TO DISMISS AND RULE 5 ANSWER ("Motion to Dismiss," ECF No. 8) arguing that Claim Four is defaulted and barred from review here and that Claims One through Three lack merit. Moseley has filed a Prayer for Habeas Relief Reply to Respondent Answer Rule 6 ("Response," ECF No. 12) with many attachments.

         I. FACTUAL AND PROCEDURAL HISTORY

         A grand jury charged Moseley with two counts of grand larceny and three counts of breaking and entering. Indictments 1-5, Commonwealth v. Moseley, Nos. 1309-080 through 1309-84 (Va. Cir. Ct. Sept. 3, 2013). After a bench trial, Moseley was convicted of two counts of grand larceny and two counts of breaking and entering and one count of breaking and entering was nolle prossed by the Commonwealth. See id. No. 1309-080 (Va. Cir. Ct. Nov. 5, 2013) . Commonwealth v. Moseley, 799 S.E.2d 683, 684 (Va. 2017). The Circuit Court sentenced Moseley to an active sentence of six years of incarceration. See Moseley, 799 S.E.2d at 684.

         A. Direct Appeal

         On appeal, Moseley argued that "the evidence was insufficient to prove that he was the person who committed the crimes." Moseley v. Commonwealth, No. 0881-15-1, 2016 WL 3172701, at *l (Va. Ct. App. June 7, 2016) . The Court of Appeals of Virginia agreed and reversed Moseley's convictions. Id. The Commonwealth appealed that decision and the Supreme Court of Virginia granted its petition for appeal. See Moseley, 799 S.E.2d at 684. In reversing the Court of Appeals of Virginia, the Supreme Court of Virginia aptly summarized the evidence of Moseley's guilt as follows:

At trial, the Commonwealth presented evidence that on June 3, 2013, between noon and 5:15 p.m., a burglary-occurred at John and Mary Ann Winsley's home located on Wilderness Road in Hampton, Virginia. Mr. Winsley testified that when he returned home from work the door leading into his garage was broken open. Mr. Winsley called police, who then dusted for fingerprints while he and his wife inventoried their missing items. Among other things, the Winsleys testified that their collection of rare coins and paper currency was missing.
Captain Susan Canny of the Hampton police department testified that she drove past the Winsley residence at around 3:00 p.m. on June 3, 2013. As she drove past, Captain Canny inadvertently "cut off" another driver who was "pulling off the curb" next to the Winsley property. The other vehicle stopped and Captain Canny testified that she had a "nice clear view" of the driver, whom she later identified as Moseley. Captain Canny took notice of Moseley because she lived nearby, and the residents of the community "watch out for everybody." She testified that Moseley "looked startled when he saw [her]." Jonathan Ellis testified that on June 17, 2013, two weeks after the first burglary, his home located on Fort Worth Street was burglarized between 10 a.m. and 3:40 p.m. Mr. Ellis testified that when he returned home from work he discovered the back door was unlocked. Inside, Mr. Ellis found his video games strewn across the living room floor and his wife and daughter's jewelry boxes overturned in their bedrooms. Mr. Ellis testified that various pieces of jewelry were missing from those boxes.
Officer Eric Rausch of the Hampton Police testified that on that same day he responded to a call regarding an attempted burglary in the Beauregard Heights area of Hampton. Officer Rausch testified that the caller described the subject as "a black male wearing a gray T-shirt, black shorts, in his mid-to-late 20s." When Officer Rausch arrived in the area, he observed Moseley walking down East Little Back River Road. Moseley fit the caller's description, so Officer Rausch stopped and spoke with him. June 17, 2013, was not "a particularly cold day," but Moseley was carrying a pair of "heavier knit glove[s]" in one of his pockets. Officer Rausch testified that the gloves were similar to those worn by "grocery store workers [when] moving frozen foods back and forth." Moseley told Officer Rausch "that they were his workout gloves." Officer Rausch took Moseley into custody.
Captain Canny testified that she heard the report of the attempted burglary over her police radio. The report indicated that the attempted burglary took place at the corner of Wilderness and Beauregard Heights, which was behind her home. Captain Canny was "very concerned about the burglaries in the area," so she went to the police station to speak with the detectives. When she arrived, Captain Canny immediately recognized Moseley as the man she had seen pulling away from the Winsley residence two weeks earlier.
At approximately 10:30 p.m. on June 17, 2013, tow truck driver Robin Shuffler received a call to tow a white 1990 Crown Victoria away from Willow Oaks Apartments, which was "right across from Little Back River Road." When he arrived, Shuffler observed that all four of the vehicle's windows were down and the keys were inside. Shuffler towed the vehicle to a secure lot, where he began to inventory its contents. As he was inventorying, Shuffler discovered a "bag of jewelry and some marijuana," which prompted him to call his boss. Shuffler's boss told him not to disturb anything, and the police were contacted the following morning.
Detective Corporal Erik Rummell testified that the next morning, on June 18, 2013, he executed a search warrant for the interior of the white Crown Victoria. Detective Rummell testified that the glove box contained an electric bill, which was addressed to Joshua Moseley and dated March 28, 2013. In addition, the center console of the vehicle contained: 1) Moseley's Virginia identification card, 2) Moseley's Portsmouth library card, 3) a box of suspected marijuana, 4) a bag of jewelry, and 5) various paper bills and coins, some of which were in protective sleeves. According to Detective Rummell, the "stuff [was] all jumbled up . . . they were all just kind of mingled together." The Winsleys and the Ellises confirmed that several of the items found in the console had been stolen from their homes in the two burglaries.
Melissa Cook, the property manager of the address listed on Moseley's electric bill, testified that she had seen Moseley driving the vehicle "on a regular basis." Cook explained that Moseley drove the car “[p]retty much on a daily basis for the time that [he] stayed there." Nevertheless, Cook was unable to recall the specific dates or the period of time during which she had seen Moseley driving the car. On cross-examination, Detective Rummell acknowledged that the white Crown Victoria was not registered to Moseley, but was instead registered to Kelton Adams-Elkins.

         Moseley moved to strike the evidence at the close of the Commonwealth's case-in-chief and again at the close of all of the evidence. He argued that the Commonwealth failed to prove that he possessed the stolen items found in the Crown Victoria, and therefore the Commonwealth was not entitled to the inference that he committed the larcenies and burglaries. Moseley argued that he could have sold the vehicle to Kelton Adams-Elkins, the registered owner at the time of trial, in the time since Cook had seen him driving it on a regular basis. Moreover, because the windows were down, anyone in the area could have "put that stuff in the car" before it was towed away. The circuit court rejected both arguments and denied both motions, explaining:

The operative word here was that some of the stolen property was commingled [ ] with the identifying documents. I understand what you were saying was that [ ] maybe the documents . . . were there and all this got dumped on top; and he didn't see them in the vehicle. Maybe somebody else did it. [But] [w]e don't have that because . . . the officer said the items were mixed up together.

         The circuit court found "the evidence sufficient despite the circumstantial nature." Based on that evidence, the court then found Moseley "guilty of each of the offenses beyond a reasonable doubt."

         On July 17, 2014, Moseley moved to set aside the verdicts. During a hearing on that motion, the circuit court questioned defense counsel as to which inferences could be reasonably drawn from the evidence:

THE COURT: Let me see if I can break this down. Do you concede it's a reasonable inference that, first, the person that stole the property in each case committed the burglary in each case?
[Defense counsel]: Yes, sir.
THE COURT: Do you think it's a reasonable inference that the same person committed both? Less strong but both?
[Defense counsel]: It's certainly possible, Your Honor. I think it's a conclusion that could be drawn. I don't think it's the only conclusion to be drawn from the evidence.

         Nevertheless, Moseley maintained that the evidence did not support an inference that he committed the offenses because the Commonwealth failed "to establish he was in possession of the vehicle or of the property inside the vehicle." The circuit court took the motion under advisement to further consider whether "there [was a] reasonable hypothesis of somebody else's possession." By order dated August 26, 2014, the circuit court "conclude[d] that there [was] no sufficient basis for vacating the judgments of conviction" and denied Moseley's motion.

         Moseley appealed his convictions to the Court of Appeals, and a three judge panel reversed all four convictions in an unpublished opinion. Moseley v. Commonwealth, Record No. 0881-15-1, slip op. at 1, 2016 WL 3172701 (June 7, 2016). The Court of Appeals initially ruled that the burglary and larceny inferences were inapplicable because the evidence did "not prove that [Moseley] had exclusive dominion and control over the stolen property." Without the benefit of those inferences, the Court of Appeals then held that the evidence was insufficient because it "fail[ed] to link [Moseley] to ...


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