-FBS Ramsey v. Runion, No. 2:2011cv00396 - Document 30 (E.D. Va. 2012)

Court Description: OPINION and FINAL ORDER: It is, therefore, ORDERED that the petition (ECF No. 10) be DENIED AND DISMISSED WITH PREJUDICE for the reasons stated in the Report and modified herein. Respondent's Motion to Dismiss (ECF No. 16) shall be GRANTED, and judgment shall be entered in favor of Respondent. It is further ORDERED that Respondent's Motion to Alter or Amend Judgment (ECF No. 26) be DENIED, Respondent's Motion to Amend Her Objection (ECF No. 28) be GRANTED, and Petitioner's Mo tion to Appoint Counsel (ECF No. 27) be DENIED. Petitioner may appeal from the judgment entered pursuant to this Opinion and Final Order by filing a written notice of appeal with the Clerk of this court, United States Courthouse, 600 Granby Street, N orfolk, Virginia 23510, within thirty (30) days from the date of entry of judgment. Petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right." 2 8 U.S.C. § 2253(c)(2). Therefore, the court, pu rsuant to Rule 22(b) of the Federal Rules of Civil Procedure, declines to issue a certificate of appealability, and it is hereby ORDERED that Petitioner's Motion for Issuance of a Certificate of Appealability (ECF No. 27) be DENIED. See Miller-E l v. Cockrell, 537 U.S. 322, 335-36 (2003). The Clerk shall mail a copy of this Opinion and Final Order to Petitioner and to counsel of record for Respondent. IT IS SO ORDERED. Signed by District Judge Rebecca Beach Smith and filed on 9/5/12. Copies distributed to all parties 9/6/12.(ldab, )

Download PDF

UNITED FOR THE STATES EASTERN DISTRICT DISTRICT Norfolk CHARLES CLAUDE FILED COURT OF VIRGINIA Division SEP RAMSEY, 5 2012 CLERK, US DISTRICT COURT NORFOLK, VA Petitioner, v. Civil KIMBERLY H. of the Virginia No.: 2:llcv396 RUNION, Director Action For Behavioral Center Rehabilitation, Respondent. OPINION This corpus matter under federal 28 was Act. Mental The 72 23.) 31, By SVP. of the Rules of of the Virginia. 2012, copy referred Federal United of the R and custody of habeas violations commitment of as a Sexually Violent December the United U.S.C. § of Civil 9, 2008, Virginia as States the Department "R Magistrate 636(b)(1)(B) Procedure, District Magistrate R, civil of id. States recommended writ alleges entered 28 to for under Virginia's a Rules (referred and petition to of The petition order See provisions the By the was Recommendation May an ORDER Petitioner's to to the District as by ("SVP") 10.) committed Health 72(b) of No. FINAL The to matter pursuant Rule 2241. predator {ECF Petitioner was of § pertaining sexually violent Predators initiated U.S.C. rights AND Judge and dismissing each party was as Judge and (c) well as and Rule Court for the filed his Report and "Report") on R" the or petition. advised of the Eastern (ECF right No. to file written objections Magistrate Judge. a motion for a On June (ECF No. to the 2012, 24.) and recommendations of the Petitioner was also advised of his right to file certificate of 7, findings On appealability. the court June 12, received 2012, Petitioner's Petitioner filed objections. a motion to appoint counsel and for issuance of a certificate of appealability. (ECF No. the R 27.) and R Rule 59(e) 26. J1 On Also on June and a of the June 14, objections. (ECF motion 12, 2012, to alter Respondent or amend Federal Rules of Civil 2012, No. Respondent 28.) On June judgment Procedure. filed 20, filed objections to a motion 2012, pursuant (ECF Nos. 25- to her amend Petitioner filed response, objecting to Respondent's motion to amend. (ECF No. The for the time filing motions are ripe Federal Rules matters based of on for objections disposition. Civil the has Procedure, parties' expired, Pursuant the court submissions, and to Rule will finding to a 29.) parties' 78 of decide oral the these argument unnecessary. I. RESPONDENT'S MOTIONS AND OBJECTIONS A. Respondent' s Motion to Alter or Amend Judgment Respondent's Rule 59(e), motion which was to alter or filed on June 12, pertains to the entry of judgments, amend 2012, judgment pursuant is DENIED. and a magistrate to Rule 59(e) judge's Report 1 Both filings seek to correct a perceived typographical error in the Report. See infra at 3-4. -2- is not a judgment. B. Respondent's Motion to Amend Her Objection Respondent's perceived June 12, typographical a 2012, error Respondent filed objection, explaining that decision to treat rather than motion of to U.S.C. period arguing in objections for the filing Respondent's the Report, and presentation, 2254. first this the R and R, "no he on the was an statement that constitutionally an 14, to Respondent's filed § 2241 Respondent's obligated she 2012, Judge's U.S.C. opposes a additional the Magistrate 28 to it file all motion within to the "a Petitioner's commitment recommendation that is to the court statement, on page would have record determination relinquished and (emphasis contradicts to state make became Petitioner's his due not that an final," (C)(1) would of at hearing by As Respondent on page not inquiry and be felt rights statement, court such Claim -3- the added). 25 [Petitioner] process cross-examination SVP." Virginia compelled Objections Virginia confrontation, points out, June file to was because objection voluntarily that On filed under document. GRANTED objection R. Petitioner single is that stipulating leave an objections. compelled to make an knowingly and that Respondent a raise she also contests C. Respondent's of R requesting § amend, her in the petition as one objections her amend 28 motion filings at the 27 of have felt the time ultimate dismissed. It is evident that the on page 25 the of inclusion of "not" after the finding Report should read compelled." Accordingly, Respondent was also "no petition citing under Gaster App'x 821 v. objects the (4th Cir. survive procedural to the court would and have that felt first objection is SUSTAINED. treatment § Carolina 2241 of standard Department the of of petition default, was (C)(1), entitled to review, as and, Corrections, (unpublished per curiam), Petitioner's Claim § 2241. R and R at 6, error § 2241.2 The Magistrate Judge analyzed 2003) Judge determined that scrivener's Virginia stricter South a Respondent's one filed under 28 U.S.C. the merely "no Virginia court would" de 67 F. the Magistrate the only claim to novo review under 16-17.3 Section 2241 applies to petitions for writs of habeas corpus filed by persons "in custody in violation of 2 The characterization of the instant motion either as filed under § 2241 or § 2254 is Section 2254 irrelevant provides a to the outcome of standard of review that to state court decisions than § 2241. See, 370 (listing the in F.3d 1002, 1008 sections). That due to claim Respondent Petitioner's Section the Magistrate e.g., Judge to one under prevail. that § White v. recommended standard, section. 2254 would appropriate bar. Lambert, the between judgment under which it less deference Characterizing only make Nevertheless, the at differences to prevail because under objections under it court standard. (4th South Carolina Department of Corrections, Cir. decision in construe the 2003) which a petition (unpublished the petition commitment under binding courts as case easier reviews See infra F. App'x II.A. 3 Gaster v. 821 2003) for Respondent state Petitioner's for is, Cir. favor of the Respondent under § 2241's was more difficult is (9th the is more deferential Fourth of an precedent. See curiam) 2241. 4th Cir. is affirmed individual, South Carolina's filed under § per Circuit R. -4- at *1 32.1. & an a unpublished decision challenging Sexually Violent Id. 67 n.*. As his Predator Act, such, it to civil is as not the Constitution U.S.C. § or laws 2241(a)(3). petitions pursuant for writs to the the of of of that a 2254, the a State Department of in of a fact, Mental the other the AEDPA court." criminal § 2254 cases. supports 28 applies to hand, "in custody U.S.C. he § 2254(a). commitment was is "in custody under the plain text Respondent's of contention. committed to the custody of the Virginia to Indeed, 28 conviction, state court" Health, appears States." filed by persons Mental Retardation, Abuse Services pursuant to a judgment of a in United even though Petitioner's A fair reading of § 2254 Petitioner was, on corpus criminal pursuant to the judgment § 2254. of habeas judgment product treaties Section Respondent argues not or limit the § 2254's Supreme and state court, coverage Court to addressed Substance and nothing judgments in the of scope in dicta: Incarceration conviction may be pursuant by far to the a state most common criminal and most familiar basis for satisfaction of the "in custody" requirement in § 2254 cases. But there are other types of state court judgments pursuant to which a person may be held in custody within the meaning of the federal habeas statute. For example, federal habeas corpus review may be available to challenge the legality of a state court order of civil commitment or a state court order of civil contempt. Duncan v. Walker, the Fourth Circuit construed habeas petitions fact, 533 U.S. 167, 176 appears filed to by -5- (2001) be the state (emphasis only civil added). circuit to committees In have under § 2241.4 2010); See, Banda (unpublished (7th Cir. 2003); e.g., v. New table 2010); Smith Walker v. v. an Jersey, Murphy, 134 decision); Poole v. 611 F.3d F. Brown 569 720, unpublished 615 App'x Goodno, Richards, Hadi, While Young v. v. 991, 722-23 case, 529, F.3d 705, 992-93 is (1st Cir. (3d Cir. 599 (11th Cir. Gaster, 64-67 531 Waters, 335 F.3d F.3d 59, F.3d 708 (9th 2005) 602, (8th Cir. 611 Cir. 2009); 2010). not binding on this court,5 it is not without serious review that the court rejects the Magistrate one under Judge's § finding 2241. The overwhelming support this court filed that under objection is the 28 that plain the 2241 civil WL as § 2254. Order petition at No. under the and the convinces Accordingly, Respondent's second the the Magistrate Judge 7:ll-cv-00283 fact that 2241, rather than § 2254, does not section to apply to petitions brought by (E.D. court Dir. (W.D. Dowdy v. Va. Western Ramsey v. § e.g., originally petition to this § 2241. Duncan, courts within the Fourth Circuit have treated See, *1 to have from 2254, as SUSTAINED. the appropriate 2413945, § characterized for this position in other circuits, U.S.C. committees. appears of be instant petition should be characterized as one 4 Relying on Gaster, § petition language As Respondent acknowledges, analyzed the June Stewart, 13, 2011). filed his petition District of Va. Ctr. 5 See supra note 3. -6- 2011). fact, § but transferring the the arising under Rehab., (ECFNo. 2011 Petitioner 2254, claim as for Behavioral July 12, In 2:10cv457, under Virginia, re-characterized the Va. No. Civil Action 29 attach. 1.) affect the ultimate disposition of note 2; Petitioner's claims. See supra infra Part II.A.6 II. PETITIONER'S MOTIONS AND OBJECTIONS A. Petitioner's Objections Rule 72(b)(2) of the that any objections Fed. R. Civ. P. to discern. arguments raised also in habeas habeas magistrate He Claims primarily (C) (1) to petitions (B). cause See R for and R at report pro se (C) (2) that he because The court he procedurally lacked was finding that defaulting facts petition. prevented claims in Petitioner and from in his the argument Claims are his of this specific. the counsel construes be requires objections ineffective assistance of counsel proceedings.7 show Procedure reiterated and argue objection to the Magistrate Judge's to judge's Petitioner's has appears adequately raising state a 72 (b) (2). difficult Petitioner to Federal Rules of Civil state as an failed (A)(l)-(3) and 14-15. 6 Importantly, jurisdiction remains proper in this court, which is within the district construed as a § 2254 jurisdiction to of confinement, claim. entertain See 28 [a § even U.S.C. 2254] when the § 2241(d) application" the districts of confinement and conviction claim is ("[C]oncurrent exists between in this context.); see, e.g., Martin v. Johnson, l:08CV1254, 2009 WL 2434734 (E.D. Va. Aug. 4, 2009) (exercising the court's discretion to maintain a § 2254 claim in the district of confinement where, as here, the respondent had replied and supplied appropriate state court records without difficulty). 7 Importantly, commitment Petitioner did have proceeding. -7- counsel in the underlying The (C)(1), 7-15.8 Magistrate Petitioner's In Claim violated relying than his on and his (C) (2) , Petitioner attorney's the Petitioner's due (C) (2) to The was raise the from bringing a Nothing objection regarding further he was that he Magistrate claim on merits of the procedurally Magistrate Claim also claims defaulted. R found R Petitioner rather an SVP found appeal, that because and he are is rule R and R at court's by 10- independent Petitioner's futile, finding and that his Claim OVERRULED. that and was Accordingly, Judge's is court state procedural the (C) (2) Magistrate Judge that finding. defaulted assistance found this SVP, defaulted direct and adequate R and R at Judge procedurally Claim erroneously an or the procedurally that of trial by objections on ineffective rights proceeding. arguments The the collateral record rebuts is that state review of the (C) (2) exception Petitioner's in in argues establish evidence. independent 11. the process to now prevented by an it with stipulation government Claim failed that, claims were procedurally defaulted. convincing Petitioner found constitutional requiring clear Judge at that Petitioner 12-13. had each not The of has the four raised Magistrate established are Judge cause for 8 The fact that the Magistrate Judge construed the petition under § 2241 rather analysis, in than § this case. 2254 (requiring exhaustion of F.3d 525, 531 (4th state Cir. required exhaustion of does not Compare (citing before -8- the U.S.C. remedies), 2010) claims affect 28 procedural §§ with Timms cases filing for § default 2254(b)(l), in v. Johns, which 2241 (c) 627 courts relief). defaulting on these claims. to his the effectiveness civil of commitment effectiveness of R and R at Petitioner's proceeding, Petitioner's the Magistrate Judge's assistance claims, habeas Claims (A)(l)-(3) state-appointed and Claim (B) state-appointed from his civil commitment proceeding. to 14. relate counsel relates counsel for to on the appeal Petitioner apparently objects findings regarding his ineffective arguing that the absence of counsel in his state proceedings constituted cause for defaulting on these claims.9 Petitioner's arguments are unavailing. Recently, in Martinez v. Ryan, 132 S. Supreme Court established a three-step test a petitioner has claim. First, prisoner to proceeding 1318. cause the raise an rather Second, initial-review the imposing than on direct underlying ineffective assistance Petitioner see Lenz (explaining that state must v. have can habeas corpus been ineffective. satisfy the 544 assistance proceedings), have first a collateral S. Ct. counsel in Id. the Third, the "some merit." claims must 304 of (Va. Id. this 2001) be brought save in Petitioner's 9 The court has liberally construed Petitioner's objections. -9- at in the two prongs cannot the counsel S.E.2d 299, Martinez require 132 appointed claim must Commonwealth, ineffective claim in Martinez, or the ineffective assistance failed to appoint collateral proceeding, proceeding inquiry, review. state must have (2012), conviction must ineffective assistance collateral Although the 1309 for determining whether for defaulting on an state Ct. ineffective commitment assistance hearing United States v. is claims a Baker, from civil 45 F. procedural rather 3d 837, 842 is premised on the Sixth Amendment's of counsel defendants See id. 317 in criminal should have a ("A than criminal (4th Cir. right proceedings default because matter. 1995). to effective assistance and inability to See Martinez the principle fair opportunity to vindicate that prisoner's a present a that right. claim of trial error is of particular concern when the claim is one of ineffective assistance of foundation counsel. for our . . . adversary [T]he system. right Defense prosecution's case to ensure that proceedings adjudicating guilt or innocence, person charged."). Martinez where It no would, to counsel serve the while protecting the therefore, underlying be the tests counsel is the function of rights of the inapposite constitutional right to to apply counsel exists. The Virginia Supreme Court has held that involuntary civil all significant commitment process Jenkins v. Rehab., 453, corpus S.E.2d relief does not lie 502 U.S. 62, 764, (1990)). The U.S. Amendment's right to 67 460 McGuire, 780 the subject right stages of the judicial proceedings, appellate process." 624 has "the Dir. (Va. for (1991) of the Va. 2006). errors Ctr. However, of state (quoting Lewis v. of the to counsel at including the for Behavioral "federal law." habeas Estelle Jeffers, v. 497 U.S. Supreme Court has not extended the Sixth counsel to individuals -10- in civil commitment proceedings. at 497-500 (4th Cir. an See Vitek, (Powell, 1995) 445 U.S. J., in a civil (citing Vitek, Cooper v. Heyman, 8 Dec. of facing civil counsel, Clause, or in a 445 2007) U.S. civil Petitioner had no ("[T]he commitment even due at 494-96) not the at has not under held right the *7- that a assistance Due Process Accordingly, commitment proceeding."). commitment proceeding or on direct appeal, to 2007 WL 4287682, counsel, federally cognizable right opinion); entitled to effective of guarantee (plurality Supreme Court assistance does proceeding 06-4523, is id. 45 F.3d at 843 & n.3 process commitment Civil Action No. 4, (plurality opinion); concurring);10 Baker, counsel) person 496-97 (acknowledging that individual (D.N.J. at because to counsel during his he cannot avail himself of Martinez to prove cause for procedural default.11 Although there is assistance of counsel had counsel.12 assistance prong that 10 In Yet, claim his Vitek, involuntary counsel, the controlling satisfied adviser who is 11 Once again, commitment civil still because he commitment cannot cannot Justices 445 to U.S. a 497; the not a provision lawyer." Petitioner proceeding. Id. supra that health a at 12 See supra notes 7 and 11. -11- his Petitioner ineffective Martinez's a prisoner facility Justice qualified third was facing entitled Powell, to who wrote "due process may and independent 4 99. counsel note to effective have merit because believed that of did have See claims however, concurring opinion, by out establish believed mental at right proceeding, make ineffective assistance transfer be federally cognizable in a he four Vitek, no 7. during the underlying he has failed to make a colorable showing that deficient or that 683 F.3d 489, 131 S. Ct. it caused him prejudice. 504 (4th Cir. 770, 787 2012) (2011). representation was See Winston v. Pearson, (quoting Harrington v. Richter, An attorney's representation is deficient if it falls below objective standards of reasonableness. Id. The central question in this inquiry is representation amounted professional norms,' to incompetence Washington, 466 U.S. 131 S. 668, 690 Ct. is strongly presumed to have significant professional investigation of law and If a petitioner but for still prove is that counsel's in facts able the is a Petitioner's Petitioner has not who bring "counsel this errors, at options are 690. substantial burden, probability the Stickland, result must be reasonable after thorough plausible "reasonable unprofessional Id^ at to 44 6 U.S. to overcome there of choices made Strickland, likelihood of a different conceivable." Petitioners exercise relevant proceeding would have been different." "The (quoting Strickland heavy burden because and "strategic virtually unchallengeable." he must 'prevailing rendered adequate assistance and made decisions judgment," at 788 (1984)). ineffective assistance claims bear a all under not whether it deviated from best practices or most common custom." Richter, v. "whether an attorney's that, result of the 4 66 U.S. at 694. not just substantial, 7 92. Claim (A) (1) identified fails any -12- under this unreasonable standard acts or because omissions that resulted attorney, law. Mr. See from the Haines, Strickland, was ignorant procedure the Supreme petition on Court civil Petitioner's at filing fact 690. It that act commitment that direct granted Petitioner appeal rules is deficient. habeas identify any resulted from Mr. in matters Accordingly, civil however, first to or omission that may have Haines of process; failed proceedings. Mr. appeal because Petitioner's has commitment field of criminal true failure to gain sufficient expertise commitment civil Virginia's civil ground. is Petitioner's Virginia of that U.S. the the other unreasonable Haines's for of governed that practiced primarily in the 466 missed the deadline he fact Claim related to (A) (1) lacks merit. Claim Mr. Haines (A)(2) failed Petitioner has of evidence not that, to in a claim Petitioner's Petitioner was Petitioner never without found merit. that a investigate attempted to if outcome of the civil merit similarly so argued or Petitioner available identify a Claim (A)(3), sexually agreed First, Petitioner in violent to waive Respondent met the The articulation that trial and right and however, or piece cannot find support. stipulated that {"SVP") to that changed the factual even trial, Petitioner's statutory -13- court counsel predator his defense would have commitment proceeding. lacking defenses; single introduced, claims definition though is also experts both of an SVP. In light of the experts' about an counsel's SVP and conditional there assuming focus the argument the than in Petitioner has civil appellate stipulation as the §§ in failure no to make a trial trial Claim he on Claim would the (A)(3) (B), trial colorable ineffective Act are or diagnosis about the their defense individual meets not Even of the constituted evidence have of been an SVP, suggests an showing SVP. that or whether claim to without have an risk assessment treatment of merit. the definition -14- had his Petitioner It "expert," of sex of trial an is to well- Sexually who is a and "who is offenders sex offenders," and to testify at -908. outcome relating licensed clinical psychologist and that without merit. also entitled the Because the different of assistance is not Court question is is facing civil commitment under Virginia's the 37.2-907, that definition counsel, knowledgeable assist belief the SVP, did this alleged failure prejudiced him in any meets to Moreover, Petitioner offered fact, Predators in has 690. stipulation. this the licensed psychiatrist skilled and that Petitioner's Petitioner apprise Petitioner commitment an to at the and failed Individuals Violent failed of court Petitioner's 13 that consequences Petitioner was securing this attorney proceeded qualified on Strickland, Petitioner's before Petitioner, efforts that record suggesting counsel of stipulate U.S. indicating that Other his the nothing unreasonable 466 performance, evidence of in See tactical that deficient defense release. consequences way. strategic decision to is nothing understand findings,13 there was and appointed to regarding whether SVP. Va. Code Ann. established that even right in to habeas 551, counsel corpus 555 right to Court). criminal non-capital proceedings. (1987) proceedings), in (no counsel for Accordingly, See v. Pennsylvania to Torna, 455 fact that Petitioner effective ineffective did not assistance have of a during proceeding or on appeal.14 Baker, 1995) (citing existed, Vitek, 445 Petitioner cannot procedurally defaulting his at ineffective 1318. Judge's his at show finding that Petitioner's procedurally defaulted (C) (1) addressed on pertaining to the is the are the U.S. (no Supreme state-appointed remedies cannot 494-96). cause, civil 843 if under assistance to (4th Cir. such rights Martinez, claims Martinez, objections the to commitment & n.3 Even right for because 132 S. Ct. Magistrate OVERRULED. only merits. claim Although arguments presented in his petition, 11, U.S. ineffective assistance claims are claim are merely a 14 See supra notes 7, his lack merit. Petitioner's 481 (1982) cognizable F.3d at ineffective assistance claims Accordingly, Claim U.S. 45 federal claim. federally counsel the federal assistance and 587 Petitioner's counsel on direct appeal declined to pursue form the basis of an in federal post-conviction 586, petition no Finley, in U.S. is appeal v. counsel certiorari the there discretionary right Wainright proceedings and 12. -15- that the Magistrate Petitioner's recitation of Judge objections the merit-based the Magistrate Judge analyzed the claim under petition Respondent is it (C)(1) rather than § 2254. the same (C)(1) the whether the however, asserts it at the Virginia Petitioner's stipulation that civil he was (plurality opinion), and Claim run would trial commitment an SVP 176 found that afoul of F.3d 249, 263 Lane, determine claim on whether direct unreasonable the appeal application was of, 489 U.S. Supreme § The Fourth Circuit 2254(d)(l). resolving Teague, Weeks, [a] such 176 claim in a F.3d 266 is 1999). of also Court's to, United observed -16- against Magistrate favor is required denial of the involved an Federal that on See Weeks States." impermissible n.9. the or established the has review. Had (1989) relief he would have been Supreme [Petitioner's] decision at Court 288 prohibition clearly the The Magistrate Teague's "contrary determined by inquiring Petitioner 2254, Virginia violated granting (4th Cir. Judge analyzed the claim under § to As hearing when without announcing new constitutional rules on collateral Angelone, the necessary to court knowing and voluntary. Judge analyzed this claim under Teague v. v. is that the ultimate disposition of Claim that stipulation was (C) (1) 2254, found under each provision. due process accepted § Having under the appropriate statutory framework. recognizes, Claim federal 2241 is properly cognizable under analyze Claim (C)(1) § "if law, 28 a § U.S.C. decision impermissible under as under 2254(d)." The court analysis. the It finds is clear Magistrate committees rights, rights also, (concluding that attach to Sexually a prisoner, that not he due process (1979) prove facts denied legal in a is equally requirement guilty civil plea that court is knowing Boy kin v. v. Supreme and 129 the Constitution does not health 395 63, 68 45 F.3d at 372 (1986) not under Illinois's 496-99 (outlining of good Texas, proceeding an indigent cause 441 Court to and was U.S. 418, "clear reasonable has extended that a Raley, 242 Cir. 1997) It the defendant's entered 506 U.S. (1969); to and doubt"). not stipulations 238, (2d by require a court to elicit a -17- procedural required the government Parke v. U.S. process facility and concluding showing voluntary F.3d at record showing See 364, transferring "beyond a create a Alabama, Pelensky, for commitment the 445 Addington v. rather than that U.S. conducted due process commitment proceedings. (1992); States that clear a upon the in civil self-incrimination did Vitek, to a mental civil convincing evidence" Act); counsel); (holding See Baker, 478 cited due defendants. against hearing procedural with Illinois, Teaque prospective coincident requirements involuntarily, could be of not Judge's precedents although proceeding Persons Court range privilege commitment entitled to 432-33 the Magistrate that, a v. the Supreme criminal Allen Dangerous procedural to are afforded to see in Report entitled these 842-43; error from the Judge's are protections no cf_;_ 20, in 29 United (holding that formal waiver of procedural committed a due from a defendant who supervised precedents, found rights the court process release agrees to violation). that require stipulates the that U.S. In light Supreme courts that make of Court an he has these has not on-the-record determination that a prospective civil committee has knowingly and voluntarily waived procedural to facts predicate the right Supreme that federal denial of Because asserts that his attorney stipulates in no precedent Claim claim on (C)(l), direct or an unreasonable application of, law. objections commitment. Petitioner Court's contrary to, to rights when 28 as U.S.C. to Claim § 2254(d)(1). (C)(1) establishes the Virginia appeal was not clearly established Accordingly, Petitioner's are OVERRULED. B. Petitioner' s Motion for Appointment of Counsel and Issuance of a Certificate of Appealability Petitioner's Motion a Certificate respect court to notes 499 (1987). counsel to 28 (4th that 467, Although § request is habeas 495 the represent U.S.C. Cir. there federal U.S. to Appealability Petitioner's non-capital Zant, of for Appointment 1968), the for corpus has see appointment Penn v. of right Finley, in Bowman v. -18- No. See 481 here civil White, has Issuance of 27.) to not the counsel in McCleskey v. U.S. to litigation 388 With counsel, discretionary power party petitioner and (ECF proceedings. the indigent 1915(e)(1), DENIED. constitutional (1991); court an no is of Counsel F.2d 551, 555 appoint pursuant 756, alleged 761 any "exceptional counsel Cir. in this matter. 1975); 1985), circumstances" Griffin aff'd, 780 See Cook v. v. Virginia, F.2d decision). to appoint counsel 1018 Accordingly, Petitioner that demonstrate different deserve 676, at that a COA or 683 (4th Cir. petitioner must constitutional denies demonstrate see "at 28 cite any resolved Slack, law in a 529 or issues manner table discretion on a failed, have that U.S. at of argument favorable to him, of Lee, When the to F.3d 473, that denial of a a the district would must find it the denial of reason would find it in Petitioner that a 252 petitioner reason to 529 U.S. the the in adequate (explaining correct Because any however, a valid claim of jurists -19- v. McDaniel, grounds, court was 484. Rose of Judge's resolved were granted). jurists right and that been showing COA to be certificate has 2253(c)(2) procedural a Magistrate further. § file presented substantial for make its the He should U.S.C. debatable whether the district ruling." to (quoting Slack v. least, constitutional Va. (unpublished to debatable whether the petition states of a (4th (E.D. 943 exercise of 780 941, not issue. proceed "a right" relief the to make F.2d 779, 1985) right object not that 2001) (2000)); 518 appointment Supp. Cir. his petition encouragement 483-84 court and the manner F. the Petitioner. ("COA") recommendation 606 (4th exercised appealability Bounds, the court will for has that would warrant the its procedural has failed to petition could be court denies his motion for issuance Magistrate of a Judge's COA. Petitioner's recommendation objections that a COA regarding not issue the are also findings with OVERRULED. III. Having reviewed to Report, to which the parties AND therein, delete under the 28 court 2254(d)(l), denial of contrary that to, established United the or that and claim law, as is, therefore, and modified herein. shall be Respondent. or of page and is the hereby set forth 25, "a the 12, "have." Petitioner's set decision Supreme Claim forth Supreme application determined by line properly cognizable Virginia not 2012, does precedes review unreasonable ORDERED DENIED AND DISMISSED WITH 16) at reviewed was court 31, in Court's that of, was clearly Court of the States." It Report that appeal an the May recommendations petition having FINDS involved Federal the novo Judge's "would" standard on de modification: 2254, court and follows the made Magistrate findings that to and have objected, FINDS § pursuant the following "not" U.S.C. of the the word the (C) (1) § APPROVE with Further, portions record respect ADOPT the the CONCLUSION Amend GRANTED, It is Judgment and that PREJUDICE the for No. the judgment shall 26) -20- be to 10) stated Dismiss entered Respondent's be DENIED, (ECF No. reasons Respondent's Motion further ORDERED that (ECF petition in the (ECF No. favor Motion Respondent's in be of to Alter Motion to Amend Her Motion to Objection Appoint Petitioner this this (ECF No. Virginia date entry from judgment. substantial U.S.C. of § the showing 2253(c)(2). Federal of Petitioner's Motion (ECF be No. 335-36 27) of 23510, of within denial DENIED. See shall mail a Miller-El to days v. from the hereby right." to declines Certificate appeal demonstrate pursuant is of to 600 Granby constitutional it a notice (30) failed Procedure, of pursuant Courthouse, thirty court, and Issuance a Petitioner's entered written has of the Civil a and DENIED. States Petitioner the be judgment United appealability, for the GRANTED, filing Therefore, Rules certificate 27) court, Norfolk, of be Order by Street, of 28) appeal Final with the Clerk of No. Counsel may Opinion and (ECF Rule to "a 28 22(b) issue ORDERED a that of Appealability Cockrell, 537 U.S. 322, (2003). The Clerk Petitioner IT IS and SO to counsel copy of of record this Opinion and for Final Order to Respondent. ORDERED. /S/ Rebecca Beach Smith ~~ United States District Judge -6Kr REBECCA CHIEF Norfolk, Virginia SeptemberO , 2012 ¢21- BEACH UNITED SMITH STATES DISTRICT JUDGE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.