United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING ACTION)
E. HUDSON UNITED STATES DISTRICT JUDGE
Jennings, a Virginia inmate proceeding pro se, filed
this petition for habeas corpus under 28 U.S.C. § 2254
("§ 2254 Petition, " ECF No. I). 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.
THE REPORT AND RECOMMENDATION
Magistrate Judge made the following findings and
contends that he is entitled to relief upon the following
Claim 1 "The trial court abused its discretion in
denying [Jennings's] motion for expert funds."
(§ 2254 Pet. 5.)
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.)
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.)
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
Exhaustion and Procedural Default
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. §
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).
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). 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).
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.
Applicable Constraints upon Federal Habeas Corpus
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 Virginia courts
figure prominently in this Court's opinion.
Summary of the Evidence
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.)
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.)
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.
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.