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Wright v. Clark

United States District Court, W.D. Virginia, Roanoke Division

September 19, 2019

MARK O’HARA WRIGHT, Petitioner,
v.
HAROLD CLARK, DIRECTOR, Respondent.

          Mark O’Hara Wright, Pro Se Petitioner

          Victoria Lee Johnson, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for the Respondent.

          OPINION

          James P. Jones United States District Judge

         In this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, Mark O’Hara Wright, a Virginia inmate proceeding pro se, contends that his confinement pursuant to a 2013 judgment entered by a state court is unconstitutional. Upon review of the record, I conclude that the respondent’s Motion to Dismiss must be granted.

         I. Background.

         On March 25, 2012, the petitioner Wright and his brother Robert Wright (“Robert”) entered Martin’s Grocery in Harrisonburg, Virginia, selected deli sandwiches and two cases of beer, and walked out of the store without paying for the items.[1] Many of their actions inside the store were captured on surveillance camera footage. Garrett Atkins, an asset protection employee, and a female manager followed them into the parking lot and asked to see their receipt. Rather than stop, the Wright brothers approached a green Dodge Caravan, and Atkins followed them.

         Atkins identified himself as a store employee and asked Robert again for a receipt. When Robert claimed to have one, but made no move to produce it, Atkins took the case of Dos Equis beer that Robert was carrying. C.W., a fifteen-year-old boy, exited the Caravan from the passenger side, “took a fighting stance, ” and began to “make threats toward” Atkins, saying things like, “I’m going to fuck you up. I’ll beat your ass, and I’m not afraid to go back.” Br. Supp. Mot. Dismiss Ex. 3, at 48, 50, 100, ECF No. 13-3. Robert took the beer back from Atkins’s hand. From the driver’s side of the vehicle, where Wright stood, Atkins heard, “let’s go, let’s just go, let’s go.” Id. at 49. Atkins stepped forward and saw Wright throw the stolen property he was holding into the Caravan. The Wright brothers and C.W. then got into the car and left. Atkins testified that the property they stole was worth $50.45.

         In June of 2012, after considering evidence of the March 25, 2012, incident and subsequent events that day, a grand jury of the Circuit Court of Rockingham County returned indictments charging Wright with robbery, contributing to the delinquency of a minor, petit larceny, malicious bodily injury by means of a caustic substance, assault on a law enforcement officer, and obstruction of justice.[2]Wright pleaded not guilty and proceeded to a jury trial in December of 2012. On the day of trial, over Wright’s objection, the robbery charge was amended to robbery as a principal in the second degree.

         After the conclusion of the evidence, the prosecutor proffered the following instruction for the robbery charge, which the court ultimately pronounced to the jury as Instruction 10:

         The defendant is charged with the crime of robbery. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

(1) That the defendant intended to steal; and
(2) That the defendant took beer; and
(3) That the taking was from Garrett Atkins or in his presence; and
(4) That the taking was against the will of the owner or possessor; and
(5) That the taking was accomplished by intimidation of the person or the threat of serious bodily harm.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the crime as charged, then you shall find the defendant guilty of robbery. . . .
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the first four above elements of the crime as charged, but that the taking was accomplished without violence or intimidation of the person or the threat of serious bodily harm and that the property taken was worth $5 or more, then you shall find the defendant guilty of grand larceny from the person. . . .
If you find that the Commonwealth has failed to prove beyond a reasonable doubt any of the above crimes, then you shall find the defendant not guilty.

Commonwealth v. Wright, CR12-00781 – 00788, Instruction 10.

         The prosecutor characterized grand larceny from the person as a “lesser included charge” of robbery, appropriate “if the jury finds that the taking was accomplished without violence or intimidation or the threat of bodily harm and that the property taken was worth $5.00 or more, then there’s a lesser included charge of grand larceny from the person and I think that we are in agreement to that.” Br. Supp. Mot. Dismiss. Ex. 3, at 166, ECF No. 13-3. Wright’s counsel did not object to the instruction defining the offense of grand larceny from the person. Counsel did object to the fifth element of the robbery instruction on the ground that the evidence was insufficient to prove the necessary element of force, threat, or intimidation. The judge overruled counsel’s objection, concluding that the evidence of the number of people involved and of the threats C.W. made toward Atkins was sufficient to submit the robbery instruction to the jury.

         The jurors found Wright guilty of grand larceny from the person and the other five charges before them. On February 27, 2013, the circuit court sentenced Wright to an aggregate sentence of twenty years and thirty months, with all sentences imposed to run consecutive to each other.

         Wright appealed, challenging the sufficiency of the evidence to convict him of these offenses. The Court of Appeals of Virginia affirmed the convictions. Wright v. Commonwealth, No. 0585-13-3, 2014 WL 6428302 (Va. Ct. App. Nov. 18, 2014), aff’d in part, rev’d in part, 789 S.E.2d 611 (Va. 2016). As to the conviction for grand larceny from the person, Wright argued that the evidence was not sufficient “to demonstrate that he took property from the security officer’s person or was aware of the security officer’s presence in the parking lot.” Wright, 2014 WL 6428302 at *1. The court of appeals concluded that the evidence proved Wright acted as a principal in the second degree in committing grand larceny from the person and affirmed the conviction. Id. at *2–3.

         Wright also argued, for the first time on appeal, that the evidence did not “establish that the beer taken from the security officer was worth $5 or more” as an element of the grand larceny from the person offense. Id. at *1 n.1. The court of appeals refused to address this value argument on the merits, because Wright had not included it as an assignment of error in his Petition for Appeal as required by Virginia Supreme Court Rule 5A:12(c). Wright contended at oral argument that the court should address the value issue under an ends of justice exception. The court of appeals rejected this argument and found that Rule 5A:12 “contains no ‘good cause’ or ‘ends of justice’ exceptions.” Id. [3]

         On August 18, 2016, the Supreme Court of Virginia reversed Wright’s convictions for malicious bodily injury by means of a caustic substance, assault on a law enforcement officer, and obstruction of justice. Wright v. Commonwealth, 789 S.E.2d 611 (Va. 2016). The Supreme Court of Virginia found that the court of appeals had properly applied Rule 5A:12(c) and affirmed Wright’s conviction for grand larceny from the person. Id. at 615.

         In January of 2017, Wright filed a Petition for a Writ of Habeas Corpus in the Supreme Court of Virginia, which construed his pleading as alleging the following claims for relief:

1. Trial counsel was ineffective because he did not object to Jury Instruction 10 on the ground that Wright was not charged with the grand larceny offense;
2. Appellate counsel were ineffective because they did not assign error to Wright’s conviction for the grand larceny offense on the ground that the evidence was insufficient to prove that the value of the property taken was $5 or more;
3. Appellate counsel were ineffective because they did not assign error, in his appeal to the Supreme Court of Virginia, to the Court of Appeals’ application of Rule 5A:18. By applying the Rule, that court refused to consider his assignment of error there asserting that the trial court erred by convicting him of the grand larceny offense because it was not charged and is not a lesser-included offense of robbery;
4. The trial court lacked subject-matter jurisdiction to enter a judgment on the grand larceny offense;
5. Evidence relating to another charge tried simultaneously with the robbery charge was prejudicial, resulting in retroactive misjoinder;
6. Trial counsel was ineffective because counsel did not object to the verdict form, which Wright alleges omitted an option for the jury to find him not guilty of both the robbery charge and the grand larceny offense; and
7. The trial court abused its discretion by allowing the jury to find him guilty of a crime that he was not charged with.

Br. Supp. Mot. Dismiss Ex. 2, at 2–3, ECF No. 13-2.

         The respondent moved to dismiss Wright’s petition. The Supreme Court of Virginia decided that a determination of facts was required to adjudicate Claims (1) and (6) of the petition and directed the circuit court to determine whether trial counsel had justification to accept Jury Instruction 10 and whether ...


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