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Jennings v. Booker

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

September 26, 2019

ESTES JENNINGS, Petitioner,
v.
BERNARD BOOKER, Respondent.

          MEMORANDUM OPINION (ADOPTING REPORT AND RECOMMENDATION AND DISMISSING ACTION)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE

         Estes Jennings, a Virginia inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. I).[1] On August 30, 2019, the Magistrate Judge issued a Report and Recommendation (ECF No. 17) recommending that Respondent's Motion to Dismiss be granted. Jennings has submitted Objections. (ECF 19.) For the reason set forth below, Jennings's Objections will be overruled and the Report and Recommendation will be accepted and adopted.

         I. THE REPORT AND RECOMMENDATION

         The Magistrate Judge made the following findings and recommendations:

         A. Jennings's Claims

         Jennings contends that he is entitled to relief upon the following grounds:

Claim 1 "The trial court abused its discretion in denying [Jennings's] motion for expert funds." (§ 2254 Pet. 5.)[2]
Claim 2 "The trial court erred in denying [Jennings's] motion to suppress the eyewitnesses' out-of-court and in-court identifications of [Jennings]." (Id. at 7.)
Claim 3 "The trial court abused its discretion in refusing to give any jury instruction regarding eyewitness testimony." (Id. at 12.)
Claim 4 "The trial court abused its discretion in failing to hold an evidentiary hearing to ascertain whether jury misconduct occurred and whether such jury misconduct prejudiced the case." (Id. at 16.)
Claim 5 "Petitioner was denied due process because of jury misconduct that occurred during jury deliberations." (Id. at 19.)
Claim 6 "Petitioner is actually innocent of the crime." (Id. at 22.)
Claim 7 "Petitioner was denied his right to a fair trial when the jury was falling asleep during deliberations." (Id. at 24.)
Claim 8 "Petitioner was denied his constitutional right to effective assistance of counsel when his attorney, Jenna Nacht, failed to correctly draft Jury Instruction X." (Id. at 27.)[3]
Claim 9 "Petitioner was denied his right to effective assistance of counsel when his attorney, Ms. Nacht/Ms. Abernathy, failed to correctly request the assistance of an expert witness." (Id. at 29.)
Claim 10 "Petitioner was denied his right to effective assistance of counsel when his attorneys ... failed to object to the prosecutor expressing her personal opinion in closing argument." (Id. at 33.)
Claim 11 "Petitioner was denied his right to effective assistance of counsel when his attorneys ... failed to object to the prosecutor vouching for the credibility of the witnesses in closing argument." (Id. at 36.)
Claim 12 "Petitioner was denied his right to the effective assistance of counsel when his attorney, Ms. Abernathy, told the jury [the] police know who committed the crime." (Id. at 38.)
Claim 13 "Petitioner was denied his right to due process when the jurors failed to follow the Court's instructions." (Id. at 41.)
Claim 14 "Petitioner was denied his right to a fair trial when information from the courtroom was leaked into the jury room prior to the beginning of trial." (Id. at 44.)
Claim 15 "Petitioner was denied his right to effective assistance of counsel when his attorney, Jenna C. Nacht, conceded Petitioner's guilt in the direct appeal brief." (Id. at 47.)

         Respondent moves to dismiss on the grounds that Claims 7 and 14 are defaulted and Jennings's remaining claims lack merit. Petitioner has responded. For the reasons set forth below, it is RECOMMENDED that the Motion to Dismiss (ECF No. 12) be GRANTED.

         B. Exhaustion and Procedural Default

         Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner must first have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). State exhaustion "is rooted in considerations of federal-state comity, " and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism."' Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of exhaustion is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

         The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate opportunity to address the constitutional claims advanced on federal habeas. "To provide the State with the necessary 'opportunity, ' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). Fair presentation demands that "both the operative facts and the controlling legal principles" must be presented to the state court. Longworth v. Ozmint, 317 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).

         "A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when the "petitioner fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n. I).[4] The burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of "cause for the default and actual prejudice as a result of the alleged violation of federal law, " or a showing that "failure to consider the claims will result in a fundamental miscarriage of justice, " this Court cannot review the merits of a defaulted claim. Coleman, 501 U.S. at 750; see Harris v. Reed, 489 U.S. 255, 262 (1989).

         When Jennings presented Claims 7 and 14 to the Supreme Court of Virginia on state habeas, that court found that Claims 7 and 14 were barred under Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974), because Jennings could have raised, but failed to raise, these claims at trial and/or on direct appeal. (ECF No. 14-13, at 2, 8 (citing Slayton, 205 S.E.2d 682).) Slayton constitutes an adequate and independent state procedural rule when so applied. See Mu' Min v. Pruett, 125 F.3d 192, 196-97 (4th Cir. 1997). Thus, Jennings has procedurally defaulted Claims 7 and 14 unless he demonstrates cause and prejudice to excuse his default or his actual innocence. For the reasons set forth below, the Court rejects Jennings's suggestion that he is actually innocent or that ineffective assistance of appellate counsel excuses his default.

         C. Applicable Constraints upon Federal Habeas Corpus Review

         To 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; or
(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 Virginia courts figure prominently in this Court's opinion.

         D. Summary of the Evidence

         Stacey Berry testified that, on August 2, 2013, he was working as the 11:00 p.m. to 7:00 a.m. shift clerk at a 7-Eleven in Spotsylvania County. (Nov. 14, 2014 Tr. 181-82.) Berry saw Jennings wander in and out of the store that evening and, on one occasion, Jennings asked Berry for a cigarette. (Nov. 14, 2014 Tr. 183-85.) Shorty after Berry last saw Jennings, Berry heard screaming coming from outside of the store. (Nov. 14, 2014 Tr. 184-86.) Berry called 911 and then ran out of the store to find Jennings trying to steal a woman's car. (Nov. 14, 2014 Tr. 186-87, 190.) Berry and another concerned citizen, Kevin Brown, reached through the driver's side window and attempted to stop Jennings from taking off with the car. (Nov. 14, 2014 Tr. 187-89.) Nevertheless, Jennings was able to back up and take off with the car. (Nov. 14, 2014 Tr. 188-89.) The car, however, broke down just after leaving the parking lot and came to a stop on the side of the road. (Nov. 14, 2014 Tr. 189-90.) When the police arrived, Berry showed the police the surveillance video from the store, which depicted Jennings talking to Berry shortly before the carjacking. (Nov. 14, 2014 Tr. 190-91, 193-97.)

         Kaitlin Smith testified that on August 2, 2013, at or about 3:30 a.m., she stopped at a 7-Eleven store in Spotsylvania. (Nov. 14, 2014 Tr. 247-48.) After she left the store and got back into her car, a man in a skeleton mask jumped into her passenger seat. (Nov. 14, 2014 Tr. 249-50.) The man held a knife to Smith's stomach and told her "to put the car in reverse and drive." (Nov. 14, 2014 Tr. 251.) Smith put the car in reverse, began to scream, and attempted to jump out of the car. (Nov. 14, 2014 Tr. 252-53.) Brown ran over, and with Berry's assistance, attempted to remove the keys from the car. (Nov. 14, 2014 Tr. 253-55.) After Smith put the car in reverse, the thief removed his mask. (Nov. 14, 2014 Tr. 256, 259.) Brown and Berry, however, were not able to get possession of the keys to the car. (Nov. 14, 2014 Tr. 254.)

         When Smith later went to her car on the side of the road, she discovered that the thief had taken her phone and about $200 from her wallet. (Nov. 14, 2014 Tr. 257.) Smith also discovered that the thief had cut her shoulder with the knife. (Nov. 14, Tr. 258.) Smith admitted that she did not get a good look at the face of the man who took her car and could not identify Jennings as the robber. (Nov. 14, 2014 Tr. 259-60.)

         Kevin Brown testified that he was sitting in his vehicle at the 7-Eleven in the early morning of August 2, 2013. (Nov. 14, 2014 Tr. 277-78.) Jennings knocked on the window of Brown's car and asked Brown for a cigarette. (Nov. 14, 2014 Tr. 279-80.) When Brown told Jennings no, Jennings went into the store. (Nov. 14, 2014 Tr. 281.) Thereafter, Smith pulled into the parking lot in her car and went into the store. (Nov. 14, 2014 Tr. 282.) Jennings then exited the store, walked past Smith's car and went around the corner of the building. (Nov. 14, 2014 Tr. 284.) Next, Smith exited the store and got into her car. (Nov. 14, 2014 Tr. 284-85.) Brown then observed Jennings "pop[]" back into view in Smith's passenger seat, but now wearing a mask. (Nov. 14, 2014 Tr. 285.) Brown then heard Smith scream and ran to her aid. (Nov. 14, 2014 Tr. 286-89.) Eventually, Brown and Berry were able to get Smith out of her vehicle, and Jennings then drove the vehicle out of the parking lot. (Nov. 14, 2014 Tr. 291.) The vehicle then stopped about a block and a half up the street. (Nov. 14, 2014 Tr. 291-92.) Jennings stumbled out of the car and ran down the street. (Nov. 14, 2014 Tr. 292-93.)

         E. ...


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