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Henry v. Virginia Department of Corrections

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

December 9, 2019

TROY TERRELL HENRY, Petitioner,
v.
VIRGINIA DEP'T OF CORRECTIONS, Respondent.

          MEMORANDUM OPINION (GRANTING MOTION TO AMEND AND DISMISSING REMAINING CLAIMS)

          HENRY E. HUDSON, JUDGE

         Troy Terrell Henry, a federal inmate proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1). In his § 2254 Petition, Henry challenges his convictions in the Circuit Court for the City of Alexandria, Virginia ("Circuit Court") of racketeering, enticing a prostitute, and receiving money or earnings of a prostitute. (See ECF No. 15-2, at 3.) By Memorandum Opinion and Order entered on February 23, 2018, the Court granted Respondent's Motion to Dismiss in part, dismissed Henry's six original claims, and directed Henry to file a motion to amend his § 2254 Petition to include any facts supporting Claims Seven through Nine. (ECF Nos. 28, 29.) Thereafter, on March 19, 2018, Henry filed an "Amended Motion Pursuant to 28 U.S.C. [§] 2254" ("Motion to Amend," ECF No. 31). In his Motion to Amend, Henry seeks leave of Court to add the following claims for relief:[1]

Claim Seven: "Trial counsel provided ineffective assistance by allowing the Commonwealth's Attorney to vouch for a cooperating witness in the closing argument thereby infringing upon a fair trial under the Sixth Amendment." (Mot. Amend 9.)
Claim Eight: "Counselor Mize provided ineffective assistance of counsel by failing to object to the Court's erroneous jury instruction on the conduct element of the RICO offense." (Id. at 14.)
Claim Nine: (a) "[The] Commonwealth violated [Henry's] Fifth [and] Fourteenth Amendment due process right[s] by violating the trial court['s] sequester order;" (id. at 20) and, (b) "Counselor Mize provided ineffective assistance by dropping the ball on being more alert of this violation [of the Circuit Court's ruling regarding the sequestration of the witnesses]." (Id. at 22-23.)

         Respondent filed a Response in Opposition ("Response"), arguing, inter alia, that Henry's additional claims are procedurally defaulted and barred from review here and, in the alternative, that they lack merit. (ECF No. 38.) For the reasons set forth below, Henry's Motion to Amend will be granted. Claims Seven, Eight, and Nine (a) and (b) .will be dismissed.

         I. PROCEDURAL HISTORY

         Following a jury trial in the Circuit Court, Henry was convicted of racketeering, enticing a prostitute, and receiving money or earnings of a prostitute. (ECF No. 15-1, at 1-2.) The Circuit Court sentenced Henry to a total of 27 years of imprisonment, with an additional three years suspended. (ECF No. 15-2, at 1-4.) Henry appealed.

         On November 14, 2014, the Court of Appeals of Virginia denied Henry's petition for appeal. (ECF No. 15-3, at 1.) A three-judge panel of the Court of Appeals of Virginia also denied Henry's petition for appeal. (ECF No. 15-4, at 1.) The Supreme Court of Virginia refused Henry's petition for appeal on January 19, 2016. (ECF No. 15-5, atl.)

         On January 4, 2017, the Court received Henry's § 2254 Petition, which included six claims for relief. (§ 2254 Pet. 5-13.) Thereafter, on June 14, 2017, Henry submitted, a petition for writ of habeas corpus to the Circuit Court raising three additional habeas claims that were not presented in his original § 2254 Petition. (See ECF No. 17, at 3.)

         On June 23, 2017, Respondent filed a Motion to Dismiss, seeking to dismiss Claims One through Six in Henry's § 2254 Petition. (ECF No. 13.) Respondent provided Henry with Roseboro[2] notice (ECF No. 16); however, Henry did not respond to the Motion to Dismiss, and instead, he filed a Motion for Stay and Abeyance. (ECF No. 17.) In Henry's Motion for Stay and Abeyance, Henry requested leave to supplement his § 2254 Petition by adding three additional habeas claims that were not presented in his original § 2254 Petition, and he requested that this Court hold in abeyance his § 2254 Petition pending the resolution of his state habeas proceeding. (Id. at 2-4.) On September 1, 2017, the Circuit Court denied Henry's state habeas petition as untimely. (ECF No. 23-1, at 1.)

         By Memorandum Opinion and Order entered on February 23, 2018, the Court granted Respondent's Motion to Dismiss in part, dismissed the six claims set forth in Henry's § 2254 Petition, and directed Henry to file a motion to amend his § 2254 Petition to include any facts supporting his habeas Claims Seven through Nine. (ECF Nos. 28, 29.) On March 7, 2018, Henry filed a Motion for an Extension of Time, in which he requested an extension of time to comply with the Court's February 23, 2018 Memorandum Opinion and Order. (ECF No. 30.) Thereafter, Henry filed the instant Motion to Amend, in which Henry seeks leave of Court to add three additional claims for relief. (Mot. Amend 1-25.) By Memorandum Order entered on April 3, 2018, the Court granted Henry's Motion for an Extension of Time and deemed Henry's Motion to Amend as timely filed. (ECF No. 33, at 1.)

         II. MOTION TO AMEND

         As noted above, by Memorandum Opinion and Order entered on February 23, 2018, the Court, inter alia, directed Henry to file a motion to amend his § 2254 Petition to include any facts supporting his habeas Claims Seven through Nine. (ECF Nos. 28, 29.) In response, Henry filed a Motion to Amend and provided additional facts to support these claims. (Mot. Amend 1-25.) Upon consideration of Henry's motion, the Court will grant Henry's request to amend his original § 2254 Petition to add Claims Seven, Eight, and Nine (a) and (b), and will address the merits of these claims.

         III. EXHAUSTION AND PROCEDURAL DEFAULT

         The parties argue over whether Claims Seven, Eight, and Nine (a) and (b) are procedurally defaulted. Nevertheless, because Henry's claims clearly lack merit, and because he had no counsel at his "initial-review collateral proceeding," Martinez v. Ryan, 566 U.S. 1, 16 (2012), and he asserts that a mailing error prevented him from appealing the Circuit Court's denial of his state habeas petition to the Supreme Court of Virginia, the Court turns to the merits of Henry's claims.

         IV. INEFFECTIVE ASSISTANCE OF COUNSEL

         A. Applicable Law

         To demonstrate ineffective assistance of counsel, a convicted defendant must show, first, that counsel's representation was deficient, and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the '"strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         B. Claim Seven

         In Claim Seven, Henry contends that "[t]rial counsel provided ineffective assistance by allowing the Commonwealth's Attorney to vouch for a cooperating witness in the closing argument thereby infringing upon a fair trial under the Sixth Amendment." (Mot. Amend 9.) Specifically, Henry argues that the Commonwealth's Attorney "vouch[ed] for cooperating witness, Amber Miller ..., during [the] closing argument to the jury" (id.), and "Counselor Mize provided ineffective assistance of counsel by failing to object to this vouching of Ms. Miller." (Id. at 12.)

         "A prosecutor may neither vouch for nor bolster the testimony of a government witness in arguments to the jury." United States v. Sullivan, 455 F.3d 248, 259 (4th Cir.' 2006) (Widener, J., concurring in part and dissenting in part) (citing United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997)). "Vouching occurs when a prosecutor indicates a personal belief in the credibility or honesty of a witness; bolstering is an implication by the government that the testimony of a witness is corroborated by evidence known to the government but not known to the jury." Sanchez, 118 F.3d at 198 (citing United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993)). In determining whether a prosecutor's comments constitute vouching or bolstering, the United States Court of Appeals for the Fourth Circuit has held that "[courts] must first decide whether the comments made in fact constituted vouching or bolstering," and then,

[i]f so, [courts] must next determine whether the comments prejudicially affected the defendant by considering (1) the degree to which the comments could have misled the jury; (2) whether the comments were isolated or extensive; (3) the strength of proof of guilt absent the inappropriate comments; and (4) whether the comments were deliberately made to divert the jury's attention.

Id. (citations omitted).

         Henry identifies three specific instances in which he believes the statements of the Commonwealth's Attorney, Mr. Porter, during closing arguments, constituted improper vouching for one of the witnesses. (See Mot. Amend 10-11.) Specifically, Henry contends:

It all started, in the closing argument, when Mr. Porter stated that, "you've heard testimony that Ms. Miller thought that she was in love with the Defendant, that she told him she was in love with him. You've heard testimony that they were engaged to be married. She clearly was upset, when she heard that he was having sex with other prostitutes inside of the household, all of that is true."

(Id. at 10 (emphasis in original) (quoting Nov. 26, 2013 Tr. 159).) Henry also contends that "Mr. Porter continued in closing, and stated that, 'Now, ladies and gentlemen, what I would ask you to do is not just accept the testimony of Amber Miller, although I think it's incredible and inherently believable.'" (Id. (emphasis in original) (quoting Nov. 26, 2013 Tr. 168).) Further, Henry argues:

Mr. Porter tried to finish his vouching for Ms. Miller by stating that, "the testimony of Amber Miller, yes, you know, she's still prostituting herself. Quite frankly, I would prefer that she weren't, but she is, but her testimony, her testimony, what you heard from her up here on the stand, was completely believable."

(Id. at 10-11 (emphasis in original) (quoting Nov. 26, 2013 Tr. 177).) Henry does not identify any additional specific instances in which he believes that the Commonwealth's Attorney improperly vouched for a witness, but argues generally that "Mr. Porter did vouch for Ms. Miller by stating several times, during closing argument, that her testimony was true, incredible and inherently believable, and completely believable." (Id, at 11.)

         A prosecutor's "statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11 (1985). Therefore, the Court reviews the statements identified by Henry in the context of the other arguments presented by the Commonwealth's Attorney during closing arguments and in the context of the entire case. Specifically, during closing argument, the Commonwealth's Attorney argued:

All the Commonwealth wants today is to hold the Defendant accountable for inflicting woe and misery on any number of people, primarily young women, working for him as prostitutes during the time frame classified here.
He should be held accountable for what he did, just like any human being should be held accountable, and on the evidence you heard, the only verdict that would hold him accountable for [his] action is guilty on all three counts.
Now, I would submit to you, ladies and gentlemen, that the Defendant is the primary moving force behind the enterprise that you've heard about.
I would ask you when you go into the jury room and the 12 of you[] are talking about this case, I'd ask you to think about the testimony that you've heard from primarily, the two prostitutes that testified, and one of the first things I would ask you to consider is the fact that Amber Miller was 19 when she met the Defendant, and that Cynthia Orr was in her early 20's, 21 or 22, when she met the Defendant, and the Defendant was 35 or 36.
With Amber Miller, that's almost twice her age, and I would submit to you that her emotional age was less than 19, and I would submit to you that what the Defendant did was pimp marginal - I'm sorry, a person on the margins of society, who was vulnerable and decided that ...

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