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Jennings v. Winston

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

December 5, 2019

GEORGE P. WINSTON, Respondent.


          Elizabeth K. Dillon, United States District Judge

         Petitioner Joshua Lee Jennings, a Virginia inmate proceeding pro se, filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging a judgment entered by the Circuit Court of Spotsylvania County on April 13, 2017. The trial court sentenced Jennings to five years' active incarceration for his second violation of probation and resuspended 62 years. Respondent has filed a motion to dismiss the petition, and Jennings has responded, making the matter ripe for disposition.

         After careful review of Jennings' claims and the record of all proceedings in the state court, the court concludes that the procedural default of Jennings' claims under state law is an adequate and independent ground for the state court's denial of his state habeas petition. Further, Jennings has not demonstrated the required cause and prejudice to overcome the procedural bar. For these reasons, the court will grant the motion to dismiss and will deny Jennings a certificate of appealability.

         I. BACKGROUND[1]

         On November 8, 2006, the Spotsylvania County Circuit Court sentenced Jennings to 75 years in prison, with 68 of the years suspended, for one count of possession of child pornography in violation of Virginia Code § 18.2-374.1:1 and 10 counts of possession of child pornography, second offense, in violation of Virginia Code § 18.2-374.1:1(D). His active sentence was to be followed by 12 years of good behavior and indefinite supervised probation. Jennings never appealed from this conviction or sentence.

         On November 25, 2014, Jennings acknowledged being in violation of the terms of his suspended sentence, and the court revoked his 68-year suspended sentence and re-suspended all but one year, by order entered December 19, 2014. (Ct. Rec., 21-22.) Jennings did not appeal from this judgment, either. On January 26, 2017, Jennings was arrested for his second violation of probation. (Id. at 1.)

         On March 28, 2017, Jennings pled guilty to being in violation of the terms and conditions of his suspended sentence and supervised probation. The violation report filed with the court alleged that the Pulaski Police Department investigated Jennings for downloading child pornography in December 2016; Jennings admitted during an interview on December 28, 2016, that he had purchased a Hewlett Packard laptop computer from Craigslist in March 2016, which was his computer and used only by him, even though he knew he was prohibited from possessing a computer. (Id. at 19-20.) He further acknowledged that he had downloaded pornography from Pornbay and Pirate Bay. The Pulaski officers provided a report to Jennings' probation officer that included a description of three pornographic videos of known pornography found on Jennings' computer and eight additional images of suspected child pornography. (Id.) According to Jennings, the images of child pornography were found in “unallocated space” on the computer, having been erased, and they had to be “restored and reconstituted” during the forensic evaluation. (Id. at 110.) Although the state's advisory Probation Violator Guidelines recommended incarceration for a period of three to six months (id. at 96-97), the court revoked his 67-year sentence and imposed an active sentence of five years in prison, re-suspending 62 years. The court entered its written order on April 13, 2017. (Id. at 100-02.) On May 31, 2017, Jennings filed a motion for reconsideration of his sentence. (Id. at 104-05.) After consideration on the merits, the trial court denied the motion for reconsideration on July 7, 2017. (Id. at 112.) Jennings did not appeal his sentence.

         On February 5, 2018, Jennings filed a petition for habeas corpus in Spotsylvania County Circuit Court, raising the following claims: (1) The supervision condition banning his access to computers violated his First Amendment rights; (2) the condition banning his access to computers was an “impossible condition, ” necessarily leading to further incarceration; (3) the government improperly admitted evidence of deleted pornographic videos in the unallocated space of his computer's hard drive; and (4) ineffective assistance of counsel. After considering the pleadings and the record, the state court ruled that Jennings' first two claims were waived when he pled guilty, were untimely to the extent they challenged conditions imposed in 2006 and re-imposed in 2014, and were procedurally defaulted when he failed to appeal any of the judgment orders. (Order, Jennings v. Commonwealth, No. CL18-570 (Spotsylvania Co. Cir. Ct. May 2, 2018), attached to Pet., Dkt. No. 1 at 18-19.) Likewise, the state court held that Jennings' evidentiary objection set forth in claim three was procedurally defaulted when he failed to appeal from the judgment imposed. (Order at 19.)

         The state court addressed the ineffective assistance of counsel claim on its merits, considering the allegations of Jennings' petition and the affidavit of his former attorney filed in response to the petition. The court first held that it found the attorney's affidavit to be credible, resolving factually disputed issues against Jennings, and then ruled that Jennings had failed to prove either that counsel's representation was constitutionally deficient or that he was prejudiced. (Id. at 19-20.)

         Jennings filed a notice of appeal to the Supreme Court of Virginia, challenging the trial court's habeas decision. However, he failed to perfect the appeal because he did not file a petition for appeal within 90 days of the May 2, 2018 judgment, as required by Rule 5:17(a)(1) of the Rules of Court. (Letter to Jennings, Pet. 17.) On September 7, 2018, the Supreme Court of Virginia dismissed Jennings' appeal for failure to file a timely petition. (Dismissal Order, Ex. 2 to Resp.'s Br. in Supp. of Mot. to Dismiss, Dkt. No. 14-2.)

         On January 30, 2019, Jennings filed his petition for writ of habeas corpus in this court, pursuant to 28 U.S.C. § 2254, raising substantially the same claims he presented to the state court.


         A. Procedural Requirements

         As amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), federal statutes require state prisoners to meet several procedural requirements before a federal court may grant relief in habeas corpus. First, the petitioner must file his claim timely, generally within one year from the date on which the state court judgment became final. 28 U.S.C. 2244(d)(1)(A). Next, he must exhaust his state court remedies before filing in federal court. 28 U.S.C. § 2254(b)(1)(A).

         1. Timeliness

         The sentencing order from which Jennings seeks relief was entered April 13, 2017. (Ct. Rec. 100-02.) The order became final on May 13, 2018, because that was the last day on which he could have filed an appeal under Virginia law. Va. Code § 8.01-675.3 (requiring notice of appeal to be filed within 30 days from entry of trial court's final order). The trial court entered an order denying reconsideration of Jennings' sentence, but under Rule 1:1 of the Supreme Court of Virginia, entertaining a motion for reconsideration filed by a prisoner does not extend the deadline for filing an appeal or seeking collateral relief. Normally, then, Jennings would have to file his § 2254 petition before May 13, 2018. 28 U.S.C. ...

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