Chang v. Department Of Corrections, No. 1:2016cv00507 - Document 13 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION re: Respondent's Motion to Dismiss. Signed by District Judge Leonie M. Brinkema on 10/31/16. (pmil, )
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Chang v. Department Of Corrections Doc. 13 IN THE UNITED STATES DISTRICT COURT FQ iRTHE ni EASTERN DISTRICT OF VIRGINIA P Alexandria Division m 3 i 2016 .... ) Malachi Eric Chang, Petitioner, 1 CLERK. UC. jrt l:16cv507 (LMB/MSN) V. Department of Corrections, Respondent. MEMORANDUM OPINION Malachi Eric Chang, a Virginia inmate proceeding ^ se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions of pandering and abduction with intent to prostitute, entered after a guilty plea in the Circuit Court for the City of Virginia Beach. On August 29,2016, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. Plaintiff did not file a response. The matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice. I. Bacl^round The record reflects the following. Petitioner is detained pursuant to a final judgment of the Circuit Court ofthe City of Virginia Beach, entered June 3,2013. Motion to Dismiss at Ex. A. Petitioner pled guilty to pandering, in violation of Virginia Code § 18.2-357, abduction with the intentto prostitute, in violation of Virginia Code § 18.2-48, and obtaining or processing documents for the purpose of establishing a false identity, in violation of Virginia Code § 18.2- Dockets.Justia.com 204.1Id Petitioner was sentenced to lifeplusten (10) years imprisonment, withall but thirtyfive (35) years suspended. Petitioner pursued a direct appeal to the Court of Appeals of Virginia, whichwas denied on December 23,2013. Id. at Ex. B. The Supreme Courtof Virginia subsequently refused the petition for appeal on November 12,2014. Id. During the plea colloquy on December 6,2012, the following exchange occurred. Trial Court: Areyouthe person charged withthe two offenses - tworemaining offenses? Petitioner: Yes. Trial Coxirt: Do you fully understandthe charges against you? Petitioner: Yes, I do. Trial Court: And you discussedthe charges and the elements ofthe charges with your attorney? Petitioner: Yes, I did. Trial Court: And you understand what the Commonwealth would have to prove for you to be found guilty? Petitioner: Yes, I do. Trial Court: And have you discussed -1 assume you have because we've been kind of waiting out here whileyou all have beentalkingaboutthings even today. You've discussed with [trial counsel] whether you should plead guilty or not guilty? Petitioner: Yes. Trial Court: And after all of those discussions you've decided for yourselfto plead guilty? Petitioner: Yes, I did. ^Petitioner does not challenge his conviction ofobtaining or processing documents for the purpose of establishing a false identity in the instant petition. 2 Trial Court: And you are entering your guiltypleas because, in fact, you are guilty of the crimes charged? Petitioner: Yes. Trial Court: Youdo understand that by pleading guilty, first of all - well, you already know you've givenup your right to a jury trid, but you also understand you're giving up your right to the bench trial too? Petitioner: Uh-huh. Trial Court: And since you are pleading guilty and telling me you did it, you're giving up your right not to incriminate yourself? Petitioner: Uh-huh. Trial Court: And you're giving up your right to have [trial counsel] questionany the witnesses any further? Petitioner: Yes. Trial Court: Are you giving up your right to defend yourself on these charges? Petitioner: Yes. Trial Court: Are you currently on parole or probation? Petitioner: Yes. Trial Court: And is that here in Virginia? Petitioner: No. It's in New York. Trial Court: New York. All right. Has anyone connected with your arrest and prosecution, such as the police or the Commonwealth's Attorney or any person, in any manner threatened or forced you to plead guilty? Petitioner: No. Trial Court: Have theymade anypromises to youconcerning yourguilty plea? Petitioner: No. Trial Court: And you understand - we were all looking atthe code section while you were in the back, but the abduction with the prostitution could cany up to life Petitioner: Uh-huh. Trial Court: - and then tenyears onthe pandering charge. Petitioner: Uh-huh. Trial Court: Okay. Are you satisfied with the services ofyour attorney? Petitioner: Yeah. Trial Court: This is what we call a straight up guilty plea, noplea agreement; so you do understand that there will bea presentence report prepared? Since I've heard the evidence it will come back to me. I will listen to any - and I believe since thevictim is here from outoftown she's going to testify and puton her testimony that normally would have come onthe sentencing day today. But the on that day I would hear any other evidence the Commonwealth has for sentencing and any evidence that defense has. I will consider the presentence report, but youdo understand it will be up to meto determine yoursentence? Petitioner: Yes, I do. Trial Court: All right. Did you goover all ofthese questions with your attorney? Petitioner: Yes. Trial Court: You understandeverythingwe've talked about? Petitioner: Yes, I did. Trial Court: Answered everything truthfully? Petitioner: Yes. Trial Court: Do you have any questions for me? Petitioner: No. December 6,2012 Transcript at 160-64. Petitioner's sentencing hearing was held on May 29, 2013, at which time there was adiscussion that the petitioner was convicted ofa"non-guidelines offense." May 29,2013 Transcript at 3. Asentencing order was entered on June 3,2013. Commonwealth v. Chang, Case No. CR12-1522. That same day, petitioner moved to withdraw his guilty plea based on amistake ofmaterial facts. Id At the hearing on petitioner's motion held onJune 12,2013, the following exchange occurred: Trial Counsel: After the sentencing event inthis case had happened, you informed me that you would like to address the court and request onyour behalfto allow you to withdraw your guilty pleathatyou entered previously; is this correct? Petitioner: Yes, it is. Trial Counsel: And you asked me to review the case law and to see what the grounds for this is, correct? Petitioner: Yes. Trial Counsel: All right. Can you please state your reasons why you think like, you know, that you entered your - you submitted your guilty plea in good faith and imder honest mistake and material facts to the court. Petitioner: Yes. What happened wasmy lawyer camein the back and he told me the plea that the Commonwealth had brought to him, and it wasn't - he told me that I would get six to seven years, and hetold me that the pandering was the primary offense and abduction was the secondary offense, butit wasn't; and when I cameout - Afterthe presentence report came out, it saidthat the abduction had no guidelines. And then healso still told me that the pandering would be the primary offense and the abduction would be the secondary offense, and that the abduction would get time over myhead to be suspended, and theonly active time would be the pandering. That's the only reason why I took the guilty plea. That's basically it. June 12, 2013 Transcript at 9. On cross examination, petitioner testified that heknew he was convicted ofa "non-guidelines offense" before being sentenced, he chose not to ask for a continuance on the day of sentencing because "there was no reasonto look over [the presentence report] any more [sic],"and he was neverpromised anything by the Commonwealth with regards to sentencing. Id at 14-16. Petitioner's motion to withdraw his guilty plea was denied. Id. at 9. After pursuing his direct appeal, petitioner timely filed a petition for a writ of habeas corpusin the Supreme Courtof Virginia on March23,2015, whichwas amended on May 4, 2015. Motion to Dismiss at Ex. D. The Supreme Court of Virginia dismissed the habeas petition by order dated September 24,2015. Id On April 29,2016, petitioner filed the instant federal petition, wherein he challenges his conviction onthe following three grounds,^ 1. Ineffectiveassistance, counsel misinformed the petitioner about the sentence he would receive if he plead [sic] guilty, in violation of [petitioner's Sixth] Amendment Right [sic], and Virginia Constitution, Article I, Section 8 and as defined by the U.S. Supreme Court in Strickland v. Washington. 2. Petitioner ... was deprived of his [Fourteenth] Amendment Due Process Right when the copy of [the] presentence report was not furnished to him and defense counsel until the day of sentencing and [petitioner] was denied effective counsel when his attorney failed to request that the sentencing court take appropriate action upon discovering during sentencing that the report was not famished to him at least five days prior to its presentation in open court. 3. Petitioner ,.. was denied effective assistance of counsel when his attorney failed to motion [sic] to withdraw a guilty plea before sentencing as requested by petitioner. See Dkt. No. 1. 11. Procedural Bar Wherea state court has made an express determination of procedural default, the state court's finding is entitled to a presumption of correctness, provided two foundational Construing the petition liberally, petitioner asserted the same claims he asserted in his state habeas petition as it is attached to andreferenced in the instant petition. Dkt. No. 1. 6 requirements are met. ^ 28 U.S.C. § 2254(d); Clanton v. Muncv. 845 F.2d 1238,1241 (4th Cir. 1988). First, the state court must explicitly relyonthe procedural ground to deny petitioner relief. ^ Ylst v. Nunnemaker. 501 U.S. 797, 802-03 (1991); Harris v. Reed. 489 U.S. 255,259 (1989). Second, the state proceduralrule used to default petitioner's claim must be an independentand adequate state ground for denying relief ^ Harris. 489 U.S. at 260; Ford v. Georgia. 498 U.S. 411,423-24 (1991). Whenthese two requirements have been met, federal courts may not review the barred claim absent a showingof cause and prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris. 489 U.S. at 260. The state habeas court held that the first portion ofpetitioner's Claim Two, that petitioner "was denied due process because the Commonwealth failed to provide him with a copy of his presentencing investigation report five days before his sentencing hearing" was "barred because this non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, it is not cognizable in a petition for a writ of habeas corpus. Slavton v. Parriean. 215 Va. 27,29,205 S.E.2d 680. 682 (1974). cert, denied. 419 U.S. 1108(1975)." Record No. 150451. The Fourth Circuit has consistentlyheld that "the proceduraldefault rule set forth in Slavton constitutes an adequate and independent state law ground for decision." Mu'min v. Pruett. 125 F.3d 192,196- 97 (4th Cir. 1997). Therefore, the Supreme Court of Virginia's express finding that Slavton barredreviewof the due process portion of petitioner's ClaimTwoalso precludes federal review of this portion of the claim. Clanton. 845 F.2d at 1241. Federal courts maynot review barred claims absent a showing of cause and prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris. 489 U.S. at 260. The existence of cause ordinarily turns upona showing of (1) a denial of effective assistance of counsel, (2) a factor external to the defense which impeded compliance with the state procedural rule, or (3) the novelty ofthe claim. Coleman v. Thompson. 501 U.S. 722,753-54 (1991); Clozzav. Murray. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton. 845 F.2d at 1241-42. Importantly, a court neednot consider the issue of prejudice in the absence of cause. See Komahrens v. Evatt. 66 F.3d 1350,1359 (4th Cir. 1995\cert, denied. 517 U.S. 1171 (1996). Because petitioner has made no argument establishing the cause and prejudice requirement or demonstrating his actual innocence, the due process argument raised in Claim Two is defaulted and will be dismissed. 111. Standard of Review When a statecourt has addressed the merits of a claim raised in a federal habeas corpus petition, a federal court maynot grantthe petition on that particular claimunless the statecourt's adjudication was contrary to, or an unreasonable application of, clearly established federal law, or was basedon an unreasonable determination of the facts presented at the trial. 28 U.S.C. § 2254(d)(l)-(2). This test erects a "formidable barrier to federal habeas relief for claims adjudicated on the merits. Burtv. Titlow. 134 S. Ct. 10,16 (2013). Underthis standard, for a stateprisoner to obtain habeas relief, he "mustshow thatthe state court's ruling on the claim being presented in federal courtwas so lacking in justification that therewas an errorwell understood andcomprehended in existing lawbeyond anypossibility for fairminded disagreement." Harrington v. Richter. 562 U.S. 86,103 (2011). The evaluation of whether a statecourt decision is "contrary to" or "an unreasonable application of federal lawis based upon anindependent review of each standard. S^ Williams V. Tavlor. 529 U.S. 362,412-13 (2000). A state court determination violates the "contrary to" standard ifit"arrives ata conclusion opposite to that reached by [the United States Supreme] Court ona question oflaw orif the state court decides a case differently than [the United States Supreme] Court has on a set ofmaterially indistinguishable facts." Id at413. When reviewing the state court's findings, the federal courtis limitedto the recordbeforethe state court at the time ofthe decision. S^ Cullen v. Pinholster. 563 U.S. 170 (2011). Under the "unreasonable application" clause, the writ should be granted if the federal court finds thatthe state court "identifies the correct governing legal principle fi:om [the United States Supreme] Court's decisions butunreasonably applies that principle to the facts of the prisoner's case." Williams. 529 U.S. at 413. A federal court should review the state court determination withdeference; a federal court cannot grant the writsimply because it concludes that the state court incorrectly applied the legalstandard. Woodford v. Visciotti. 537 U.S. 19,24 (2002). Rather, "the federal habeas scheme ... authorizes federal court intervention only whena state-court decision is objectively unreasonable." Id at 27. A federal court reviewing a habeas petition "presume[s] the [state] court's factual findings to be sound unless [petitioner] rebuts 'the presumption of correctness by clear and convincingevidence.'" Miller-El v. Dretke. 545 U.S. 231,240 (2005) (quoting 28 U.S.C. 2254(eVl)): see, e.g.. Lenz v. Washington. 444 F.3d 295, 300-01 (4th Cir. 2006). IV. Analysis To prevail on an ineffectiveassistance of counsel claim, petitioner must meet the two- pronged testestablished in Strickland v. Washington. 455 U.S. 668 (1984). Under thistest, petitioner must prove boththat his attorney's performance was so deficient "thatcounsel wasnot fiinctioning asthe 'counsel' guaranteed by the Sixth Amendment," and that this performance prejudiced the outcome ofpetitioner's trial. Strickland. 466 U.S. at 6X7 The two prongs, deficient performance and prejudice, constitute "separate and distinct elements." Spencer v. Murray, 18 F.3d 229,233 (4th Cir. 1994). Therefore, acourt can appropriately dismiss an ineffective assistance ofcounsel claim on either prong. Strickland. 466 U.S. at 697; s^ also Bell V- Cone, 535 U.S. 685,695 (2002) (internal citations omitted) ("Without proofofboth deficient performance and prejudice to the defendant, we concluded it could not be saidthat the sentence or conviction resulted from a breakdown inthe adversary process that rendered theresuh ofthe proceeding unreliable, and the sentence orconviction should stand"). Acoxirt reviewing a claim ofineffective assistance ofcounsel must presume that counsel acted competently, and should determine the merits ofthe claim based on the information available to the attorney atthe time of the trial. ^ Bdl,535 U.S. at695; Burket v. Angelone. 208 F.3d 172,189 (4th Ck. 2000). "To show prejudice in the guilty-plea context, the petitioner mustdemonstrate a reasonable probability that, butfor counsel's errors, hewould not have pleaded guilty and would have insisted ongoing to trial." Christian v. Ballard. 792 F.3d 427,443 (4th Cir.), cert, denied sub BQm. Christian v. Plumlev. 136 S. Ct. 342 (2015) (internal quotation marks and citations omitted). A. Claim One Petitionerarguesthat his counselwas ineffective because counsel misinformed him ofthe sentence he would receive if he pled guilty. Petitionerasserts that counsel informedhim that there were no sentencing guidelines for the charge ofabduction with intent to prostitute and, therefore, petitioner would only be incarcerated for up to ten years for the charge ofpandering. Petitioner claims that he "entered into [the] plea agreement based onthose facts." Petitioner 10 states that, when he was sentenced, he infonned counsel that he wished to withdraw his guilty plea, at which point counsel moved for withdrawal ofthe guilty plea and "stated that he had misadvised [petitioner] and would testify to such." The state habeas court dismissed this claim because petitioner failed to offer a valid reason why he should not be boimd by his representations at trial that his counsel's performance was adequate, that he had not been made any promises with regard to his pleas, that he understood the maximum sentence he could receive was life plus ten years, that there was no agreement as to his sentence, and that his sentence would be decided by the judge. Record No. 150451. Because a plea of guilty is a solemn, judicial admission of the truth of the charge, a prisoner's right to contest it is usually, but not invariably [sic], foreclosed. His statements at arraignment that facially demonstrate the validity of his plea are conclusive unless he presents reasons why this should not be so. Via V. Superintendent. Powhatan Corr. Ctr.. 643 F.2d 167,171 (4th Cir. 1981) (citations omitted), "Such '[s]olemn declarations in open court carry a strong presumption of verity' and 'subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.'" Christian. 792 F.3d at 444 (quoting Blackledge v. Alhson. 431 U.S. 63, 71, (1977)). Petitioner states that he was advised by counsel that he would only be incarcerated for up to ten years; however, during the plea colloquy,petitioner testified that he was not made any promises concerning his guiltyplea, the abduction with the prostitution charge could carry up to a life sentence, the pandering charge could carry a sentence of up to ten years, he was satisfied with the services of his counsel, and he understandthat it was up to the trial judge to determine the sentence. At the end of the colloquy, petitioner toldthe trialjudgethat he hadno questions. This statehabeas court's finding is neither contrary to, nor an unreasonable application 11 of, existing federal law and Supreme Court precedent. It also does not rest upon an unreasonable finding offact. Accordingly, the state habeas court's ruling is entitled to deference, and Claun One will be dismissed. B. Claim Two Petitioner contends, in the remainder of Claim Two, thattrial counsel was ineffective for failing to "request that the sentencing court take appropriate action upon discovering during sentencing that the report was not funushed to him at least five days prior to its presentation in open court." Petitioner states that counsel should have requested a continuance upon receiving the sentencing report on the day ofsentencing in order to prepare for the sentencing hearing, such as discovering exculpatory evidence and mitigating factors that would have impacted petitioner's sentence. The state habeas court dismissed this claim, finding that petitioner failed to satisfy both prongs of the Strickland test. The court held that the record ... demonstrates that counsel consulted with petitioner after receiving the report and asked petitioner if he wanted more time to review it. Petitioner indicated he did not. Further, petitioner fail[ed] to articulate any mitigatmg evidence he could have obtained ifhe had more time to review the report, orto identify any errors in the report. Record No. 150451. Indeed, petitioner's claim that a continuance would have made a difference in his sentencing is belied by his testimony in support ofhis motion to withdraw his guilty plea. When asked by the prosecutor ifpetitioner was able to ask for a continuance on the day ofthe sentencing hearing, petitioner stated that counsel asked him "if [he] wanted towait a little while longer to look over [the presentence report]" but that he chose not to because "[t]here was no reason to look over itany more [sic]." June 12,2013 Transcript at 14-15. Therefore, petitioner's 12 own testimony establishes that there is not a reasonable probability that, but for counsel's failure to ask for a continuance on the day of the sentencing hearing, the result of the proceeding would have been different. The state habeas court's finding is neither contrary to, nor an unreasonable application of, existing federal law and Supreme Court precedent. It also does not rest upon an unreasonable finding of fact. Accordingly, the state habeas court's ruling is entitled to deference, and the remainder of Claim Two will be dismissed. C. Claim Three Petitioner asserts that his counsel was ineffective in failing to move for a withdrawal of the guilty plea before sentencing, as requested by petitioner. Petitioner claims that he "advised his attorney that he wished to withdraw [his] guilty plea way before" the day of the sentencing hearing, but that counsel did not do so. Petitioner states that, had coimsel moved to withdraw the guilty plea "when requested by petitioner, months before the sentence even came about," the motion would have been granted. The state habeas court found that petitioner failed to satisfy either prong of the Strickland test and dismissed this claim. Specifically, the court noted that the record established that "petitioner did not tell his attorney that he wished to withdraw his guilty pleas imtil after the sentencing hearing." Record No. 150451. During the hearing on petitioner's motion to withdraw his guilty pleas, petitioner testified that he asked his counsel to make the motion "after the sentencing event." Again, petitioner's own testimony directly contradicts his argument in this claim. The state habeas court's determinations that petitioner failed to show trial counsel was deficient or that he was prejudiced by the timing of trial counsel's actions, are neither 13 contrary to, nor an unreasonable application of, existing federal law. The state habeas court's determination also does not restuponan unreasonable finding of fact. Accordingly, the state habeas court's ruling is entitled to deference and Claim Three will be dismissed. V. Conclusion Petitioner's due process claim, raised as part of Claim Two, is procedurallybarred. As to Claim One, the remainder of Claim Two, and Claim Three, nothing in the state court record indicates that the state court decisions were eithercontrary to, or an unreasonable application of, clearly established federal law; nor did those decisions involve an unreasonable determination of the facts. Accordingly, this petition will be dismissedwith prejudice by an Order to be issued with this Memorandum Opinion. Entered this I day of 2016. Alexandria, Virginia Leonie M. Brinkema United States District Judge 14
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