Mann v. Clarke, No. 3:2011cv00711 - Document 9 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 6/22/12.(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JAMES GARLAND MANN, Petitioner, v. Civil Action No. 3:11CV711 HAROLD CLARKE, Respondent. MEMORANDUM OPINION James counsel, 28 U.S.C. Garland Mann, a Virginia prisoner proceeding with brings this petition for a writ of habeas corpus under § 2254. Curtis challenges his conviction for first degree murder in the Circuit Court for the County of Goochland. Mann raises the following claims of ineffective assistance of counsel: Claim One Counsel did not request a jury instruction "stating that xThe failure of the evidence to disclose any other criminal agent than the defendant is not a circumstance that may be considered by the jury in determining whether or not he is guilty of the crime with which he is charged.'" Claim Two (§ 2254 Pet. SI 46. )1 xx[C]ounsel failed to advise Petitioner of personal and constitutional right to testify his own defense and/or permit the Petitioner testify . . . ." Claim Three his in to (Io\_ SI 64. ) Counsel failed to present evidence that, in the aftermath of Mann's suicide attempt, Mann "was completely xout of it,' non-responsive, and unable to communicate at all at the time that he 1 The Court has omitted emphasis in the quotations to Mann's submissions. was initially observed and continuing for several days thereafter." (Id^ SI 80.) Respondent has moved to dismiss on the ground that Mann's claims lack merit. Mann has responded. The matter is ripe for disposition. I. APPLICABLE CONSTRAINTS UPON FEDERAL HABEAS REVEW The Antiterrorism and Effective Death Penalty Act of 1996 relief further by way circumscribed of a writ this of Court's habeas ("AEDPA") authority corpus. to grant Specifically, "[s]tate court factual determinations are presumed to be correct and may Gray v. U.S.C. be rebutted Branker, 529 only by clear and F.3d 220, 228 (4th § 2254(e)(1)). evidence." Cir. 2008) (citing under 28 Additionally, convincing U.S.C. 28 § 2254(d), a federal court may not grant a writ of habeas corpus based on any merits claim that was adjudicated on the in state court unless the adjudicated claim: (1) resulted in a decision involved an unreasonable established Federal law, as that was contrary to, or application of, clearly determined by the Supreme Court of the United States; or (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. question court's § 2254(d). "is not The Supreme Court has emphasized that the whether determination a was federal court incorrect 2 believes but the whether state that determination threshold." was unreasonable a Schriro v. Landrigan, (citing Williams v. Taylor, II. 529 U.S. substantially 550 362, U.S. 410 465, 473 higher (2007) (2000)). PERTINENT PROCEDURAL HISTORY A jury in the Circuit Court found Mann guilty of the first degree murder of sufficiency of Jason Carr. On the evidence. appeal, Mann The Court of challenged Appeals the of Virginia aptly summarized the ample evidence of Mann's guilt as follows: [A]t approximately 7:15 a.m. on July 18, 2005, Jason Carr, the manager of Stone Mountain Carpet Outlet (Stone Mountain), was found slumped against the door of the business. Carr .22 caliber firearm. had been shot in the back with a Lieutenant James Mann[2] learned that Carr had removed appellant, a contract carpet installer, from Stone Mountain's list of carpet installers and that appellant had previously threatened and yelled at Carr. Later that day, [the Lieutenant] went to appellant's residence and appellant stated that at approximately 6:00 a.m. he checked his horses and at approximately 7:50 a.m. he went to a store. [The Lieutenant] saw several firearms inside appellant's house, and appellant gave a .22 rifle to [the Lieutenant]. Later, when the authorities executed a search warrant for appellant's house, they seized .22 bullets. The authorities also found the front license plate missing from appellant's van and duct tape over Harley Davidson stickers on the van's back window. The authorities found the license plate inside appellant's house. A witness testified that appellant's van was well known because of these stickers. 2 Lieutenant (Trial Tr. 278.) Mann is In order refer to Lieutenant Mann as not to related avoid to "the Lieutenant." 3 James confusion, Garland the Court Mann. will James Pickelman, an expert in firearm tool marks identification, testified that two bullets found in appellant's house were consistent with the bullets removed from Carr's body, but that the bullets from Carr's body had not been fired from the rifle taken from appellant's house. On July 18, 2005, appellant was scheduled to work at June Frick's house, but he did not show up. The next day, appellant called Frick and said that he had hurt himself in a horseback accident the prior weekend. Other witnesses testified that they saw appellant on July 18, 2005 and that he did not appear to be injured. On July 20, 2005, Shannon Haskins, appellant's daughter, found a package outside her house. The package contained letters written by appellant stating that he was going to commit suicide. One letter stated that he knew this was coming for four years3 and he did not want "to endure the indignity of the law." Carr and appellant knew each other for four years. After finding the package, Shannon and her husband, Tommy Haskins, went to appellant's house and found him on the floor. Shannon asked appellant if he had tried to commit suicide because of Carr, and appellant nodded his head affirmatively. Shannon asked, "Did you do it?" and appellant nodded his head and mouthed, "yes." On the way to the hospital, Shannon called her ex-husband, Wallace Richardson testified conversation. Later, Richardson, to the while and Shannon details recuperating and of the from the suicide attempt, appellant told Shannon that the gun was in the river and appellant told Shannon and Tommy that he committed the murder because of poor judgment. Initially, Shannon and Tommy told the investigators and the grand jury that appellant had not made any statements to them about the murder. However, they later changed their testimony and were granted immunity from prosecution for perjury. Linda Alt, appellant's friend, testified that in the spring 2005 appellant stated Carr had "blackballed" him as a carpet installer and he 'was unhappy about the situation. 3 Carr had begun working earlier. (Trial Tr. Alt at Stone 216) . 4 visited appellant Mountain four years after he attempted suicide, and appellant stated that he attempted suicide because after the authorities questioned him about the murder, he heard his deceased mother's voice tell him he could not run away from this one. Leeuwin Anderson and Jason Ward, convicted felons and inmates with appellant in the jail, testified that they spoke to appellant on different occasions and that appellant admitted killing Carr. Jorge Botero, a defense witness, testified that he saw a small car leave Stone Mountain's parking lot or an adjacent car dealership's parking lot between 6:55 and 7:00 a.m. on July 18, 2005. James Massa, appellant's cellmate, testified that he never heard appellant admit to Ward that he killed Carr. Dr. Martin Buxton, a psychiatrist, testified that appellant was clinically depressed in July 2005 and that it would be reasonable for a clinically depressed person suspected in a homicide to attempt suicide. The evidence from the showed that Carr installer's list for had removed Stone Mountain appellant and that appellant had threatened Carr. Appellant confessed to killing Carr to family members, to a friend, and to jail inmates. Bullets found in appellant's house were consistent with bullets removed from Carr's body, unique stickers on appellant's van were covered with duct tape, and a license plate had been removed from the van. Appellant failed to go to a scheduled job on July 18, 2005 and told the individual he had been injured the prior weekend; however, witnesses testified that appellant did not appear injured on July 18, 2005. There was sufficient evidence supporting the jury's verdict. Mann v. 14, Commonwealth, 2007). refused On Mann's April 25, petition No. 072591 (Va. Apr. Thereafter, No. 0246-07-2, 2008, for at the 1-4 (Va. Supreme appeal. Mann Ct. Court v. App. of Sept. Virginia Commonwealth, 25, 2008). Mann, by counsel, filed of habeas corpus with the Circuit Court. 5 a petition for a writ In that petition, Mann raised, inter federal habeas hearing on Claim habeas alia, the same petition. Two, petition. three After the Mann claims he conducting Circuit Court v. presses Clarke, an denied Dir., Court Dep't at 3 (Va. Cir. Ct. Dec. 30, 2010). The Supreme of III. To defendant ALLEGED demonstrate must defense. (1984). show first, To satisfy the presumption' that the wide Strickland, defendant v. the counsel's Washington, must strategy a petition F.3d 466 U.S. at "show for counsel, representation 577, 689). that 588 466 U.S. overcome and a was 668, (4th 687 prong of the tactics "'strong fall assistance.'" Cir. 2001) 'within Burch (quoting The prejudice component requires there is a reasonable but for counsel's unprofessional errors, probability of performance reasonable professional proceeding would have been different. is Mann's assistance deficient counsel's 273 to that defendant range of Corcoran, that, Mann appealed. that the deficient performance prejudiced Strickland Strickland, a Corr., INEFFECTIVE ASSISTANCE OF COUNSEL ineffective deficient and second, v. refused state Mann v. Johnson, No. 110613, at 1 (Va. July 27, 2011). appeal. the Virginia evidentiary Mann's Va. No. CL09-105, in his sufficient to A probability the result of the reasonable probability undermine confidence in the outcome." Strickland, 466 U.S. at 694. ineffective assistance of counsel claims, In analyzing it is not necessary to determine whether counsel performed deficiently if the claim is Id. at 697. readily dismissed for lack of prejudice. A. Claim One In Claim One, Mann faults counsel for not requesting a jury instruction disclose which "'The any other criminal circumstance that whether stated, or charged.'" not failure of is guilty (§ 2254 Pet. evidence of 5 46.) the jury in determining crime with which he In rejecting this claim, Circuit Court made the following pertinent findings: Respondent argues that the trial court correctly instructed the jury on presumption of innocence under the model instruction where each and every element of the offense must be proven beyond a reasonable doubt. The Respondent further argues that there was no evidence tending to implicate some other person other than the accused. Trial counsel's affidavit explains why he did not seek to give this instruction because of no evidence of another suspect. The answered question in the Commonwealth, of case Record by the Court instruction has of the giving cited No. to this the instruction Court 2952-08-2 of Patillo (2010). As is v. noted Appeals, a party offering an burden of demonstrating that the requested instruction was a correct statement of the law, was applicable to the facts of the case, and was expressed appropriately. The instruction in question was the same in the case at bar: "The to agent than the defendant is not a may be considered by the he the failure of the evidence to disclose any other criminal agent than the defendant is not a circumstance that may be considered by the jury in is the determining whether he is guilty of the crime with which he is charged." The Court of Appeals ruled that the subject of requested instruction was covered by other the instructions given to the jury by the trial court in a clearer manner than the requested instruction. There was no error in denying the requested instruction. The same logic and ruling is applicable in this case as the trial court's instructions covered principles covered in the requested instruction. the This claim is denied and the Motion to Dismiss is granted. Mann v. 2010). Johnson, of cannot 128, 141 involves at of counsel an highly prejudice. Cir. issue state state's is (4th instructions], a counsel show assistance to CL09-105, 2-3 (Va. Cir. Ct. June 29, Given that the resolution of Mann's claim of ineffective assistance Mann No. Richardson 2012) ("When raised unique to in state a a Moreover, upon v. of habeas law, such court's Virginia Branker, claim a federal court should be post-conviction law.") dependent 668 F.3d ineffective corpus as law, petition [certain jury especially deferential interpretation of its own counsel reasonably perceived that the requested instruction "would have just highlighted the fact that there was good." no other suspect and would have Respondent's Motion to Dismiss Ex. counsel) SI 105 Cir. (Va. 9, Mann v. demonstrated dismissed. Ct. Johnson, filed Aug. deficiency or Dir., 14, Va. 2009) . prejudice, done B more harm than (affidavit of trial Dep't Corr., Because Claim No. Mann One CL09- has not will be B. Claim Two In Claim Two, Mann contends that counsel failed to advise him regarding "his personal and constitutional right to testify in his (§ 2254 own defense Pet. 1 and/or permit 64.) As Court recited the explained Petitioner below, this to testify." claim lacks factual merit. The Circuit claim as the evidence pertinent to this follows: At the November 22, 2010 hearing, James Garland[ ] Mann, Petitioner, testified that Todd B. Stone, his retained attorney, told him he could not testify at trial because he was not educated or experienced and that the prosecutor would attack him on the stand. trial. Mr. This statement was made on Day 3 of the Mann said Mr. Stone said to sit down and "shut up" when Mr. Mann told Mr. Stone he wanted to testify. Additionally, Mr. Mann was never called as a witness and was never asked questions by the Court as to his right to testify. He further said he did not know he had a legal right to testify, even if his attorney advised against it. Mr. Mann also testified him Respondent's Exhibit #1 [3] that Mr. Stone brought received into evidence on September 12, 2006 at the Henrico County Jail and pushed it under the glass separating them in the meeting room. Petitioner said he did not have his glasses and could not read it. He did say he wrote in blue ink the answers to Questions 1 and 3 on page 2 of 3 Respondent's Exhibit 1 is a letter from Stone to Mann, which responds to Mann's complaints with respect to Stone's preparation of the case for trial. Respondent's Evidentiary Hearing Exhibit #1, Mann v. Johnson, No. CL09-105 (Va. Cir. Ct. filed Nov. 22, 2010) . The end of the letter has a series of questions and/or statements from Stone to Mann and provides space for Mann to answer those questions. Id. at 2-3. 9 the September 12, 2006 letter and pushed it back to Mr. Stone in the metal tray under the glass. Todd B. Stone, Esquire testified he thought he mailed Respondent's Exhibit 1 and Petitioner's Exhibit 1 (August 25, 2006 letter to Clerk requesting subpoenas for trial) as a five (5)-page document to Mr. Mann, was not but he noticed that Respondent's Exhibit 1 folded and therefore, he was not sure he mailed it. Thus, he may have hand-delivered it, but Mr. Stone has no recollection of any conversation with Mr. Mann about either thought he received Mr. exhibit. He testified he Mann's blue ink hand-written comments to Questions 1 and 3 on Respondent's Exhibit 1 by mail. Mr. Stone also testified that at the close of the Commonwealth's case in the three-day trial, which began on September 19, 2006, he had a private meeting in the courthouse hour about with whether Mr. Mr. Mann Mann of 20 minutes should testify at to an trial. In his testimony Mr. Stone said: "I was very clear with him that you have a right to testify if you want to." Later in that same conversation Stone advised: You may wish you had testified if you are convicted, and you have a right to. But where we are now, you know, we don't have the benefit of hindsight, I think you will dig a big hole for yourself [if] you testify. Mann v. Johnson, Dir., Pep't Corr., No. CL09-105, at 2 (Va. Cir. Ct. Nov. In 29, 2010). rejecting this claim, the Circuit Court made following factual findings: In evaluating the testimony on the two separate recollections of the evidence, the court notes it is a credibility issue it has to resolve. The first is the testimony of each witness as to whether at any time Mr. Stone told Mr. Mann that he had a right to testify. Mr. Mann says it was Day 2 or 3 of the trial when he says Mr. Stone said he could not testify at trial. In his affidavit submitted with his petition, he said he wanted to testify but he was not allowed to 10 the do so by his attorney. He asserts he wanted to testify, but did not know it was his decision. That testimony is countered by Mr. Stone stating a specific recollection of meeting with Mr. Mann at the conclusion of the Commonwealth's case and going over his right to testify and the giving of Mr. Stone's advice not to testify. Mr. Stone said the private meeting lasted 20 minutes to an hour. Mr. Mann did not stated. that rebut this testimony other than as above The Court notes it is difficult to believe a defense in a jury trial on a not guilty plea was not discussed with Mr. Mann and what testimony Mr. Mann could give to show Mr. Mann did not commit the crime. However, that does not answer the question of whether Mr. Mann knew of his right to testify. The second factual evidence presented to the court involves the two exhibits as Respondent's Exhibit 1 and Petitioner's Exhibit 1. Respondent's Exhibit 1 is a letter from Mr. Stone to Mr. Mann about Mr. Mann's "deep dissatisfaction" with preparation of the case seven (7) days before the beginning of the trial. The Court concludes this letter got to Mr. Mann by some form of delivery. It also concludes Mr. Mann responded considered the letter and in hand-writing to Questions 1 and 3 on page 2. his own Question 1 does address the witnesses subpoenaed as noted in Petitioner's 1, which is consistent with Mr. Stone saying the two exhibits were presented as one document to Mr. Mann. The answer repeats a name on the list (Petitioner's Exhibit 1). Questions 2, 4, 5, 6 and 7 are not answered. Question 7 issue before the Court. [4] read the letter because is Mr. he the critical one at Mann says he did not did not have his glasses- yet he was able to answer two of the questions. Mr. Stone has no recollection of discussing either exhibit with Mr. Mann. Mr. Mann's "OK" comment on Question 3 does not list any complaints, which seems like the logical interpretation. The Court cannot explain how Mr. Mann could answer Questions 1 and 3 and believe 4 Question 7 states, "I understand that I have a right to testify in my trial, even if my lawyer advises me not to testify." Respondent's Evidentiary Hearing Exhibit #1, at 3, Mann v. Johnson, No. CL09-105 (Va. Cir. Ct. filed Nov. 22, 2010). 11 that Mr. Mann could not read the did not have his glasses. questions because he A reasonable inference is that if he read Questions 1 and 3, it have read the letter in its entirety. seems he must CONCLUSION The testimony of Mr. Stone is more believable than Mr. Mann's testimony. In other words, the Court finds Mr. Mann was advised of his right to testify and chose not to do so. Therefore, [Mann's claim that counsel provided inadequate assistance with respect to advising Mann about his right to testify] is dismissed as being insufficient to satisfy the first prong of Strickland. Id. at 3-4. For the reasons stated by the Circuit Court, demonstrate that advised of his at 4. Mann counsel right has performed deficiently. to testify and not Mann fails to "Mann to do by demonstrated chose not and clear was so." Id. convincing evidence that the Circuit Court's factual finding in this regard is incorrect. See 28 U.S.C. § 2254(e)(1). Accordingly, Claim Two will be dismissed. C. In present Mann Claim Three Claim Three, testimony could not attempt. Mann testimony of Mann from medical communicate contends his complains such daughter, that personnel immediately counsel to demonstrate after testimony would have Shannon 12 Haskins, failed that his to that suicide rebutted the Mann admitted to her after his attempted suicide that he had killed Carr. In rejecting this claim, the Circuit Court stated: Mann had been discovered by Haskins in a compromised state after Mann had attempted suicide by taking an overdose of pills. Petitioner asserts that medical medical evidence would have shown Mann was not able to communicate as described by Haskins. Respondent that medical asserts that Mann has made no proffer evidence would have shown that Mann was not able to communicate as described by Haskins in her testimony at pages 326-329 of the Trial Transcript. There is no proffer of what the EMT responders to the suicide attempt would have said in testimony to refute said account by Haskins. In defense counsel's affidavit he states he spoke to the initial responders to the suicide attempt and there was nothing of value to present as evidence for the defendant. The Court finds that the legal authority cited to the Court by Respondent, Bassett[e] v. Thompson, 915 F.2d 932, 940 (4th Cir. 1990), is persuasive and sustains the Motion to Dismiss on Claim III. Mann v. Johnson, Dir., Cir. Ct. 2010). June 29, Mann that Mr. fails to and Mrs. Va. Pep't Corr., demonstrate Haskins prejudice. were the first the scene of Mann's attempted suicide. the scene with Mr. before any demonstrate professionals Haskins emergency that any could for an personnel emergency credibly No. CL09-105, The arrived. personnel Mrs. to arrive amount Mann or fails other Haskins's of time to medical testimony about Mann's actions prior to their arrival upon the scene. 13 at Haskins remained at indeterminate impeach record reflects persons Mrs. at 4 (Va. Additionally, even if the testimony of the emergency responders or other medical personnel could create some doubt regarding Haskins's testimony that Mann had nodded his head and mouthed the word killed Carr, no "yes" to reasonable the question of whether probability exists that Mann Mann had would have been acquitted. After he had significantly recovered from his Mann suicide attempt, indicated to Mrs. Haskins that the murder weapon was in the river and that the murder of Carr was the product of "poor judgment." 07-2, at 2 abundance guilt.5 (Va. of Ct. other App. evidence Mann v. Commonwealth, No. 0246- Sept. 14, 2007). convincingly Moreover, demonstrated an Mann's Claim Three will be dismissed. 5 Specifically, as noted by the Court of Appeals of Virginia: The the evidence showed that Carr had installer's list for Stone [Mann] had threatened Carr. removed [Mann] Mountain and [Mann] from that confessed to killing Carr . . . to a friend[ ] and to jail inmates. Bullets found in [Mann's] house were consistent with bullets removed from Carr's body, unique stickers on [Mann's] van were covered with duct tape, and a license plate had been removed from the van. [Mann] failed to go to a scheduled job on July 18, 2005 [the day of the murder] and told the individual he had been injured the prior weekend; however, witnesses testified that [Mann] did not appear injured on July 18, 2005. Mann v. Commonwealth, 14, 2007). No. 0246-07-2, 14 at 3-4 (Va. Ct. App. Sept. The Motion to Dismiss (Docket No. 3) will be granted. The § 2254 Petition will be denied and the action will be dismissed. The Court denies a certificate of appealability.6 The Clerk is directed to send a copy of the Memorandum Opinion to counsel of record. /,/ M Robert E. Payne Senior United States District Judge Richmond, Virginia Date: \u*j>^,1+t\^ 6 An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA") . 28 U.S.C. § 2253(c)(1)(A). A COA will not issue unless a prisoner makes "a substantial showing of the denial This could of a constitutional requirement debate is whether right." satisfied (or, 28 only when for that U.S.C. § 2253(c)(2). "reasonable matter, agree jurists that) the petition should have been resolved in a different manner or that the issues presented were proceed further.'" 'adequate to deserve encouragement to Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). No law or evidence suggests that Mann is entitled to further consideration in this matter. 15
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