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Cruz v. Aldrige

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

September 27, 2019

SHERRY LEE CRUZ, Petitioner,
ALDRIDGE, [1] Respondent.



         Petitioner Sherry Lee Cruz, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of her confinement resulting from a judgment of the City of Winchester Circuit Court. In that judgment, she was convicted after a jury trial on six charges: first-degree murder in the commission of arson, arson, and four counts of felony child abuse. The charges all arose from the same incident-a fire in her apartment-which resulted in the death of one of her five children.

         In her petition, Cruz asserts seven claims, several of them containing multiple sub-parts. Respondent filed a motion to dismiss Cruz’s § 2254 petition, and Cruz has responded, making the matter ripe for disposition.

         Some, but not all, of Cruz’s claims in her petition before this court were raised and addressed in her state habeas proceeding. Other of her claims were raised on habeas but not on direct appeal. Thus, many of her claims are procedurally defaulted and I conclude that Cruz has not shown cause and prejudice or set forth a sufficient claim of actual innocence to excuse that default. As to the non-defaulted claims, I conclude that the state court’s decision was neither contrary to, nor an unreasonable application of, clearly established federal law, and I further conclude that the decision was not based on an unreasonable determination of the facts.

         For these reasons, I will grant the motion to dismiss. I further conclude that Cruz is not entitled to a certificate of appealability.

         I. BACKGROUND

         On direct appeal, the Court of Appeals of Virginia set forth the facts as presented at trial as follows:

[O]n June 18, 2013, [Cruz] was in her residence located on the corner of Kent Street and Fairfax Lane with her five children. The children were all under the age of four. [Cruz’s] boyfriend also lived in the apartment, and he left for work at approximately 5:00 a.m. The residence, as part of an apartment complex, consisted of a living room, a kitchen, a bedroom, and a bathroom. There was a non-functioning fireplace in the living room. At 7:49 a.m., [Cruz] was seen in a surveillance video walking on Kent Street in the direction of Bo’s Belly Barn, a convenience store. A short time later, [Cruz] purchased a gasoline can and three dollars of gasoline. A surveillance video showed [Cruz] returning home at 7:56 a.m.
A few hours later, [Cruz] emerged onto her front porch with an infant daughter, as smoke began to billow from the residence. Annette Bell, who lived nearby, was seated on her front porch. When Bell saw [Cruz] step out of the residence, Bell grabbed the infant from [Cruz]. [Cruz] screamed that her babies were inside and reentered the residence. [Cruz] exited a side door facing Fairfax Lane with two additional children. The side exit door connected to the bedroom. [Cruz] reentered through the side door and returned with another child. [Cruz] told bystanders that she had four children, but then remembered she had a fifth child and returned to the residence.
Deputy Steve Moore arrived, entered the residence by the side door, and noticed burn marks on [Cruz’s] arm. At the time, the fire had not spread to the bedroom, and Moore escorted [Cruz] out of the residence. Firefighter Branyon Williams entered and crawled along the kitchen floor until he found C. C., a two-year-old child, who was trapped underneath a melted refrigerator door. C. C. died from thermal and inhalation injuries.
Assistant Fire Marshal Matthew Gearhart, an expert in fire investigations, examined fire patterns and determined that the fire originated in the living room. The low burn patterns indicated the fire could have started in front of the fireplace. While Gearhart and Fire Marshal Jeremy Luttrell, an expert in the cause and origin of fires, were removing debris, Luttrell located a strong odor of gasoline emanating from a pile of clothing that was in front of the fireplace. The fire marshals sent samples of the flooring from the rooms of the residence, the clothing, and a water bottle found in front of the fireplace for analysis. The flooring in front of the fireplace, the clothing, and the water bottle were positive for gasoline. Gearhart testified the fire originated in front of the fireplace. Gearhart also investigated possible causes of the fire and determined the fire was not caused by a defect in light switches, electrical outlets, receptacles, appliances, fixtures, the nonfunctional fireplace, a natural gas leak, or an act of God. Remnants of cigarettes were found underneath a couch across from the fireplace but Gearhart testified it had been scientifically shown that cigarettes did not burn hot enough to ignite gasoline. Gearhart determined that the fire consisted of an open flame being introduced to gasoline.
On June 20, 2013, Gearhart interviewed [Cruz]. [Cruz] stated that she never left her residence on the day of the fire and went to take a shower after putting the children down for a nap. While in the bathroom, she smelled smoke, she opened the door to the kitchen, saw a ball of fire, picked up the baby, ran outside, and returned to get the other children. [Cruz] stated that she may have attempted to throw clothes and water on the fire. On June 21, 2013, [Cruz] spoke to Detective Frank Myrtle. [Cruz] stated that she was in the bathroom for an extended period of time because she had diarrhea and saw a ball of fire when she exited the bathroom. [Cruz] stated that she threw clothes and water on the fire prior to grabbing the baby. [Cruz] called Myrtle three times inquiring about the laboratory results, but she failed to appear for three scheduled interviews with Myrtle. After the laboratory results were reported, [Cruz] again spoke to Myrtle. [Cruz] stated that on June 18, 2013 she purchased the gasoline to put into a car, that the car was located in Middleburg, and that she had called her sister to drive her to the car. According to [Cruz], she was unable to get in contact with her sister. [Cruz] also stated that a man knocked on the door of her apartment on the morning of the fire, she spoke to the man, and that the man walked across the street to speak to her landlord, Chriss [Poulos]. [Cruz] claimed that she had an argument with [Poulos] concerning a gasoline can he removed from the front porch. In a written statement on July 24, 2013, [Cruz] stated that she was smoking in the bathroom and the children banged on the door when the fire started.
[Poulos] and [Poulos’s] wife testified [Poulos] was home and not on Kent Street at the time of the fire. Ten days prior to the fire, [Cruz] called 911 twice and Bryan McFarland, an employee of Shenandoah Gas, responded. McFarland testified he could smell an odor of gasoline in an apartment adjoining [Cruz’s] residence, but there was no odor of natural gas and there was no natural gas leak in the building. McFarland noticed a gasoline can on the front porch, informed [Poulos], and [Poulos] testified that he removed the gasoline can on June 8, 2013.
David Baker testified that he went to the apartment building in June 2013 because he was going to move there the following month. Baker testified that he spoke to [Cruz], but it was not on the day of the fire and was approximately one week prior to the fire. Baker testified that while speaking with [Cruz], [Poulos] arrived, and [Poulos] showed him apartments in the building. Baker testified [Poulos] and [Cruz] argued about a gasoline can.
Angela Bailey lived across the street from [Cruz], and she testified that she was on her front porch for approximately forty-five minutes prior to the fire. Bailey testified that she did not see anyone at [Cruz’s] residence during that time. Susan Mason testified that she lived near [Cruz], she knew [Poulos], and was outside at various times on the morning of the fire but did not see [Poulos] in the area. Carol Johnson, [Cruz’s] mother, testified that she watched the five children the weekend prior to the fire because [Cruz] was tired and needed a break. Johnson testified that [Cruz’s] relationship with her boyfriend was volatile. Johnson testified that [Cruz] blamed the fire on [Poulos].

Cruz v. Warden, Civil No. CL16000111-00 (Winchester City Cir. Ct. June 12, 2017), attached as Resp.’s Ex. 9 at 3–6 (quoting facts as found by Virginia Court of Appeals on direct appeal).[2] Cruz did not testify.

         Based on counsel’s closing argument (see generally Trial Tr. 810–51, 865–68), the Commonwealth’s theory of the case was that Cruz was “desperate” to get out of her current living situation. Counsel pointed out that she was living in a 600-quare-foot apartment with her fiancé, a newborn, and four other young children, who she described as “tearing up” the house. She had a “volatile” and abusive relationship with her fiancé. He emphasized that she was tired and had asked her mother to take the kids the weekend before so that she could have a break. He also stated that she “hated” her landlord, was frustrated at things not working in the apartment and him not fixing them, and angry at him for stealing a gas can she had had on her porch a week before the fire.

         Counsel emphasized various inconsistencies in the accounts of the fire that Cruz gave to investigators at different times in the investigation, beginning two days after the fire and proceeding over about the next month. He suggested that her story changed both because portions of it were false and because she was trying to adapt to fit information that was being reported by the media about details of the investigation. As to the other persons Cruz thought may have started the fire (or that she told others she blamed), the Commonwealth pointed to evidence suggesting that none of those persons could have snuck in and started the fire that day. Counsel also noted that she received burns on her arm only on one side of her body, which he argued were consistent with burns received in close proximity to the gasoline being lit, and inconsistent with burns received as she tried to rescue the children, given the layout of the house.

         As to the child abuse and neglect charges, the prosecutor suggested that the jury could find her guilty of that based on “whatever reasons” were supported by the evidence. He noted as examples her gross and wanton negligence of having gasoline around the house while smoking cigarettes, as well as locking the children in their bedroom.

         Defense counsel’s closing, (see generally Trial. Rec. at 852–65), was devoted largely to arguing that the Commonwealth’s story-and its suggestions as to Cruz’s motives for setting the fire-simply did not make sense. Counsel noted that it would not be unusual for a mother of five young children (including a newborn) to want a break for a weekend from her children. He emphasized that she was on a month-to-month lease and could have left that home at any time she desired, so there was no need for arson to escape her living situation. He argued that it made no sense that she would buy gasoline, come home and change into her nightgown, take out her dentures, wait several hours, and then light a fire in her living room simply to spite her landlord or get out of a “bad” situation. She left all her possessions in the home, all of which were lost to the damage, and she returned to the house repeatedly, risking the fire and smoke in order to attempt to rescue her children. He argued that these were not the actions of a person who had planned to, and intentionally did, set her home on fire. He also offered an alternative theory for how the fire stated: perhaps Cruz had been smoking in the chair by the fireplace (as she did), that a cigarette or ashes from one came into contact with the carpet, which then became an open flame while she was in the bathroom, and that flame ignited the gasoline.

         With regard to her allegedly inconsistent stories, counsel contended that it was not surprising that she did not remember all the details or correctly convey what happened when she first spoke to investigators, because she had just gotten out of the hospital, was on Percocet at the time, and had just learned that Christian had died in the fire. He further noted that she had volunteered much of the information the Commonwealth was using against her at trial, including that she had gone to Bo’s that day to buy gasoline.


         As noted, the jury convicted Cruz of first-degree murder in the commission of arson, arson, and four counts of felony child abuse. (Trial Order and Corrected Trial Order in Case Nos. CR13001070-00, CR13001071-00, CR 13001189-00, CR 13001190-00, CR 13001191-00, CR13001192-00, Resp’t Ex. 1.) The jury also convicted Cruz of one count of felony homicide (or second-degree murder) for Christian’s death, but at sentencing, the Commonwealth elected to proceed only on the first-degree murder conviction, and the trial court dismissed the lesser charge. Cruz was sentenced to a total sentence of 36 years’ incarceration, with three of those years suspended and a fourth year served concurrently with Cruz’s other sentences. (Resp’t Ex. 2.) The court also found that Cruz had violated the terms of her probation from a prior case, revoked her probation, and sentenced her to 4 years, 11 months, and 29 days for the violation. That sentence was ordered to be served concurrently with her sentences in this case and with sentences imposed upon a separate revocation in Prince William County on June 5, 2014.

         Cruz appealed, but the Virginia Court of Appeals denied her petition for appeal in a per curiam order entered August 13, 2015, and by a three-judge order entered October 20, 2015. (Resp’t Ex. 4 (Cruz v. Commonwealth, Record No. 1416-14-4).) The Supreme Court of Virginia refused her petition for appeal by order entered July 19, 2016. (Resp’t Ex. 6.) Cruz was represented throughout her direct appeal by her trial attorneys.

         In March 2016, Cruz timely filed a habeas petition in the Winchester City Circuit Court. That petition raised four claims, many of them with subparts. (Resp’t Ex. 7; see also Resp’t Ex. 9 at 3 (state court habeas opinion setting forth Cruz’s claims).) The first was a claim of ineffective assistance of counsel based on different failures of her trial counsel (claims 1(a) through 1(e)). Claim 2 was a claim of prosecutorial misconduct, based on several different actions by the prosecutors, including a failure to disclose exculpatory evidence, eliciting perjured witness testimony before the court, and making improper arguments during closing. In claim 3, she alleged that the trial judge abused its discretion by several rulings: (1) allowing a juror who had not disclosed her relationship with a law enforcement officer to be an alternate on the jury; (2) permitting the Commonwealth to amend some indictments, by changing the victim from initials (C.C.) to Christian Cruz, when Cruz had thought at least one of the indictments, in Cr. No. 13-1191, referenced another son (Carlitos Cruz) with the same initials; and (3) a general claim that the trial judge repeatedly and unfairly “sided” with the Commonwealth. In claim 4, she alleged that newly discovered evidence proves that she is innocent of all charges.

         After hearing oral arguments, the circuit court denied her petition. (Resp’t Ex. 9.) The Supreme Court of Virginia refused her petition for appeal on August 8, 2018. (Resp’t Ex. 10.)

         III. CLAIMS

         In her current timely petition, [3] Cruz raises the following seven claims, with the subparts as identified by Respondent:[4]

(1) Newly discovered evidence-including an interview with Cruz’s son, Jaime Cruz, that was withheld by the Commonwealth, an interview with David Baker after trial, and Cruz’s cell phone, which was withheld by the Commonwealth-demonstrates that Cruz’s Fifth and Fourteenth Amendment rights to due process were violated and that the Commonwealth committed Brady violations;
(2) The Commonwealth committed prosecutorial misconduct by (a) allowing perjured testimony of Panagiota Poulos, and false evidence presented by David Baker, Carol Johnson-Roles, Angela Bailey, Casey Sandoval, Glen Culp, Chriss Poulos, Frank Myrtle, Jeremy Luttrell, Matthew Gearheart, Kelli Murphy, and Amy Grimes; (b) withholding requested evidence from the defense in violation of Brady; (c) failing to preserve important evidence in the investigation in violation of the Fifth Amendment; (d) making numerous false statements during closing argument; (e) presenting false evidence to the trial judge at a bond hearing; and (f) changing the name of the victim in one of the indictments from Carlitos Cruz to Christian Cruz;
(3) The trial court abused its discretion by (a) allowing the Commonwealth to amend indictment #13-CR-1191 by changing the alleged victim from Carlitos Cruz to Christian Cruz in violation of the Fifth Amendment and the Grand Jury Clause; (b) permitting a juror to remain on the jury even after it was discovered that she had lied during the questions about being involved with a law enforcement officer; (c) making comments about Cruz during a bench conference; (d) allowing juror misconduct when it was clear from an investigation that a juror was lying and that something improper had occurred; (e) not allowing Cruz to obtain another attorney even though she requested one; (f) filing a paper saying Cruz had come before the court even though she had not; and (g) not taking corrective action when Cruz filed a showing that evidence was missing and perjury had occurred;
(4) Counsel were ineffective for (a) failing to interview any of the witnesses before trial; (b) failing to prepare and present a defense at all; (c) failing to impeach several of the Commonwealth’s witnesses, including Carol Johnson Roles, Frank Myrtle, Matthew Gearheart, Kelli Murphy, Amy Grimes, David Baker, Susan Mason, Angela Bailey, Chriss Poulos, Panagiota Poulos, Jeremy Wade Luttrell, Betty Dehaven, Wanda Trenary, Casey Sandoval, and Glenn Culp; (d) failing to call Dale Wheeler, an expert witness, to testify for the defense about the cause of the fire; (e) hiring a private investigator who had only worked for the Commonwealth and had never worked for the defense; (f) failing to object to “them” not mentioning that Cruz’s landlord had had another home burn down near Cruz’s nine days after Cruz’s burned down; (g) failing to move to suppress certain statements Cruz had made; (h) failing to object to prosecutorial misconduct, namely several statements made by the Commonwealth that clearly were false; (i) failing to object when it was made known that one of the jurors had lied during voir dire and had been involved with a law enforcement officer; (j) failing to investigate and elicit evidence to contradict the Commonwealth’s witnesses’ statements; (k) failing to present all the errors that had occurred at trial on direct appeal; (1) failing to call Benjamin Ramos-Domingo and Kristie and Andy Bishop to testify for the defense; (m) failing to object to a motion in limine asking counsel not to mention a different fire that had occurred near Cruz’s apartment; (n) failing to object and show that Cruz’s children were all present in a photograph that was presented showing Cruz walking to the store with the children; (o) failing to object to statements made by the trial court that constituted misconduct; and (p) telling Cruz not to testify because she would be emotional on the stand, “so it would not be a good idea”;
(5) The trial court erred by failing to grant a change of venue, resulting in Cruz being denied the right to a fair and impartial trial and jury in violation of her Sixth Amendment rights;
(6) The trial court erred by allowing her to be convicted of first degree murder in the commission of an arson and second degree murder in violation of her Fifth Amendment rights against Double Jeopardy;[5] and
(7) The trial court erred by (a) refusing two proposed jury instructions relating to circumstantial evidence; and (b) giving Jury Instruction 9 stating that the unintentional killing during an arson or attempted arson is murder in the first degree.


         A. Exhaustion and Procedural Default

         “[A] federal court may not grant a writ of habeas corpus to a petitioner in state custody unless the petitioner has first exhausted her state remedies by presenting his claims to the highest state court.” Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing 28 U.S.C. § 2254(b)(1) and O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)). To meet the exhaustion requirement, a petitioner “must have presented to the state court both the operative facts and the controlling legal principles.” Kasi v. Angelone, 300 F.3d 487, 501–02 (4th Cir. 2002) (internal quotation marks and citation omitted). The petitioner bears the burden of proving exhaustion. See Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). “A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally barred under state law if the petitioner attempted to present it to the state court.” Baker, 220 F.3d at 288 (citing Gray v. Netherland, 518 U.S. 152, 161 (1996)). But “the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim . . . .” Id. (quoting Gray, 518 U.S. at 162).

         As to claims 2(a), 2(d), 2(e), and 3(a), the Winchester City Circuit Court, in ruling on Cruz’s habeas petition, found them procedurally defaulted because Cruz could have raised the issues at trial and on direct appeal, but failed to do so. (Resp’t Ex. 9.) See Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974) (holding that a claim could not be brought in a state habeas petition if it could have been brought on direct appeal). The Slayton bar “constitutes an adequate and independent state law ground for default”; thus, those claims are procedurally barred from consideration on federal habeas. Vinson v. True, 436 F.3d 412, 417 (4th Cir. 2006). She cannot now return to state court to present those claims because her direct appeal is final and any additional state habeas proceeding would be both untimely and successive. See Va. Code § 8.01-654(B)(2) (requiring habeas petitioners to raise all available grounds for relief in their first state petition for a writ of habeas corpus), § 8.01-654(A)(2) (setting forth two-year state habeas statute of limitations). Accordingly, I conclude that these claims are now simultaneously exhausted and procedurally defaulted under Baker and, thus, they are barred from federal habeas review. Teague v. Lane, 489 U.S. 288, 297–99 (1989); Basette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990).

         Claim 3(b)-in which Cruz alleges that the judge abused his discretion in not striking a juror who failed to disclose her romantic relationship with a law enforcement offer-is in a slightly different position. Although respondent claims that Cruz failed to exhaust this claim ...

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