Thompson v. Clarke, No. 3:2012cv00016 - Document 11 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 6/20/12. Copy sent: Yes(tdai, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division ANDRE C. THOMPSON, Petitioner, v. Civil Action No. 3:12CV16 HAROLD CLARKE, Respondent. MEMORANDUM OPINION Andre C. Thompson, a Virginia state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § dismiss. 2254 ("§2254 Thompson has Petition"). responded. Respondent matter The moves ripe for summarized the is to disposition. I. The Court of PROCEDURAL HISTORY Appeals of Virginia aptly relevant facts of this case: [Thompson] began having sexual intercourse with the victim, his daughter, when she was approximately eleven years old. These acts occurred approximately every other weekend on Saturdays when mother was not present in the residence. the evidence, the victim initiated the victim's According to some of these sexual encounters. The sexual relationship continued to the point where [Thompson] would say, "get ready," and the and have victim would sex with go into [Thompson] . his bedroom to The undress victim testified that while she refused [Thompson]'s requests for sex on occasion, she was not scared of [Thompson] or threatened at any time. Even though there was no explicit evidence of intimidation, there is no requirement of "proof that the victim feared some type of bodily harm other than the harm inherent in the sexual assault." [Commonwealth v.] Bower, 264 Va. [41,] 46, 563 S.E.2d [736,] 738 [(2002)]. The sexual assault[s] began when the victim was ten years old. As the victim grew older, she acquiesced to the sexual intercourse despite her initial refusal-because "it was going on for so long." The evidence shows that [Thompson] attempted to isolate the victim by making her promise not to tell anyone about these incidents. Indeed, [Thompson] made a point to only have sex with the victim when the mother was not in the house. The victim only told her mother when the victim discovered she was pregnant conjunction with the with [Thompson]'s continuous child. instances of In sexual abuse starting when [the victim] was ten years old, the "paternal bond, along with the victim's age and relative isolation from others, impeded her ability to resist her father." Clark [v. Commonwealth], 30 Va. App. [406,] 411, 517 S.E.2d [260,] 262 [(1999)]. Thompson v. Oct. 29, The Commonwealth, No. 1166-09-2, at 2-3 (Va. Ct. App. 2009}. Circuit Court for the County of Essex, Virginia ("Circuit Court") convicted Thompson of four counts of rape and four counts of incest and gave him an active sentence of thirtythree years and two months of imprisonment. Thompson appealed his case to the Court of Appeals of Virginia arguing that that there was insufficient evidence to support his conviction. The Court of Appeals for of Virginia denied Thompson's No. 1166-09-2, at 1. petition appeal. Thompson, The Supreme Court of Virginia subsequently refused Thompson's petition for appeal. Thompson v. Commonwealth, No. 100215, at 1 (Va. July 22, 2010). Thompson next filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. The Supreme Court of Virginia dismissed Thompson's petition. Thompson v. No. 2011). 110303, at 4 (Va. filed his § 2254 June 21, Dir., Dep't Corr., Subsequently, Thompson Petition in this Court making the following claims: Claim One Counsel the deficiently Circuit Court failed that to "the inform victim had drafted an affidavit indicating her unwillingness to testify against [Thompson]." Claim Two Counsel (§ 2254 Pet. 3.)1 deficiently motion to Commonwealth failed dismiss admitted proof of force or threat." Claim Three to file "once there was a the no (Id. at 4.) Appellate counsel deficiently failed to appeal the correct indictment number. Claim Four The evidence support two was of insufficient the four to rape convictions. II. In this case it address Thompson's In evaluating a SUFFICIENCY OF THE EVIDENCE is appropriate last claim, § 2254 claim for the Court to first insufficiency of the evidence. of insufficient evidence, the relevant question for this Court is "whether, after viewing the evidence in the light most favorable to the prosecution, rational trier of any fact could have found the essential elements The Court has corrected the capitalization in quotations to Thompson's submissions. of the crime beyond a reasonable doubt." 443 U.S. 307, 319 (1979) Jackson v. Virginia, (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). Further, "a federal habeas corpus court faced with historical a record of facts that supports conflicting inferences must presume even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, Id. at and must defer to that resolution." 326. The incest, counts Circuit Court convicted Thompson of four counts of two counts of rape by force or intimidation,2 and two of rape Thompson asserts support two of a child under the that the evidence at convictions for rape age of thirteen trial was by force years. insufficient to or intimidation. "Thompson contends that the evidence presented at his trial is insufficient to prove and [over control overbear (Mem. her Supp. will as the by victim] force, § 2254 Pet. In Virginia defined that Thompson threat, to or such domination overcome her intimidation mind . . and . ." "intimidation" is 14-15.) sexual "putting as exercised a abuse jurisprudence, victim in fear of bodily harm by The Circuit Court convicted Thompson of these two counts pursuant to § 18.2-61 (A) (i) of the Code of Virginia. This statute stated, in pertinent part: "If any person has sexual intercourse with a complaining witness (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness . . . he or she shall be guilty of rape." Va. Code Ann. § 18.2-61(A) (West 2009). exercising such domination and control of her as to overcome her mind and overbear her will." 665, 670 (Va. imposition 1985) . of Sutton v. Commonwealth, "Intimidation psychological circumstances, may pressure on be 324 S.E.2d caused one the under who, by the is vulnerable and susceptible to such pressure." Id. Matters such as the victim's age, the relative size of the defendant and victim, the familial relationship between the defendant and victim, and the vulnerable position of the victim are not matters of the "temperamental timidity" of the victim and are relevant matters to be considered with other testimony when determining whether the victim was put in fear of bodily harm. Commonwealth v. Bower, added) . Though inference of 533, 538 a 563 S.E.2d 736, 738 (Va. parental intimidation, (Va. circumstance" Ct. to App. bond Sabol does v. 2001), consider. not 2002) per se Commonwealth, "it Clark v. is a support 553 highly Commonwealth, (emphasis an S.E.2d relevant 517 S.E.2d 260, 262 (Va. Ct. App. 1999) (citing Sutton, 324 S.E.2d at 670). At trial, with her the victim testified that she began having sex father, Andre (March 18, 2009 Tr. intercourse became with pregnant 123:1-16, 123:11.) her by 128:21-25.) Thompson, in the fifth grade. She continued to engage in sexual father him while while every in other the Saturday eighth grade. until (Id. she at The victim swore that Thompson initiated their encounters by saying, "Get ready" (Id. at 125:20-21), at which point she intercourse. would (See go at id. into the bedroom 125:9-128:11.) and The prepare victim for stated that, if she refused sexual intercourse, Thompson would give her "a look" Thompson The which despite victim Thompson, would her initial testified that her to (Id. have refusal. she (Id. had sexual despite her initial refusal, on for so long." that prompt at 128:5.)3 trial also was at home. showed that at 127:13-128:2.) intercourse with The victim further stated while her mother, (Id. at 124:11-13.) Thompson with "[b]ecause it was going Thompson never had intercourse with her Thompson's wife, intercourse affirmatively Evidence at instructed victim not to tell anyone about their sexual encounters. the (Id. at 51:21-23.) The Circuit Court [Thompson's] stated: argument seems to be here that when this child turned 13 years of age, that at that point because she was a consensual father] , and a little bit more mature that this was sexual relationship between her not one that was affected by [and her fear or intimidation. When these incidents happened, although she had a younger sister, she was, for all intents and purposes, alone with her father in the house. Her testimony was that she had said "no" to her father, but these were barely the words [sic] types of transactions, and that although she said "no," she received no response. 3 Though the victim testified that Thompson never physically intimidated her, Thompson's wife testified that, upon confronting Thompson with his actions and threatening to go to the police, Thompson "got the 18, 45:7.) 2009 Tr. knife after 6 [his wife]." (March Obviously this child was preconditioned to know that saying no was pointless. The question [ ] this Court sees in this case is whether there was intimidation because this child was simply overwhelmed, a pattern that persisted for years on end and only stopped when she became pregnant. And we know this may not have been the situation of physical force on this young child, there was an overbearing persuasion that we think overbore her will and which continued consistently right up to when a situation developed that she could no longer continue with the way it was, and that was because she was going to have to tell somebody sometime that she was pregnant. (March 18, 2009 Tr. 147:13-148:22 (emphasis added).) Thus, after reviewing the evidence and credibility determinations "in the light most favorable to the prosecution," Jackson, 443 U.S. at 319, evidence in this case the Court readily concludes that clearly showed that "the the ^paternal bond, along with the victim's age and relative isolation from others, impeded her ability to resist her Commonwealth, No. 1166-09-2, at 2-3 (quoting "rational Clark, 517 trier of intimidation] 319, S.E.2d fact at have Accordingly, found beyond a reasonable doubt," Claim Four will be dismissed. Thompson v. (Va. Ct. App. Oct. 29, 2009) 262). could father.'" [the Jackson, because element a of 443 U.S. at III. To INEFFECTIVE ASSISTANCE demonstrate defendant must ineffective show first, deficient and second, the defense. (1984). the presumption' that wide v. Corcoran, Strickland, a 273 the Washington, deficient must counsel's to a 466 was 687 prong of the tactics F.3d 577, 588 that (4th Cir. "^strong fall ^within there sufficient Strickland, 4 66 2001) Burch (quoting The prejudice component requires is a reasonable but for counsel's unprofessional errors, outcome." a 668, reasonable professional assistance.'" "show probability U.S. performance and proceeding would have been different. is counsel, representation overcome strategy 466 U.S. at 689). defendant that, v. defendant range of counsel's of that the deficient performance prejudiced satisfy Strickland, the that Strickland To assistance to U.S. the result of the A reasonable probability undermine at probability 694. confidence The burden in is the on the petitioner to establish not merely that counsel's errors created the possibility of his actual trial with Carrier, omitted; and substantial error 477 prejudice, U.S. of rather disadvantage, constitutional 478, 494 emphasis omitted). of counsel claims, but the Court (1986) "that they worked to infecting dimensions." (internal his entire Murray quotation v. marks In analyzing ineffective assistance need not determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. A. Strickland, 466 U.S. at 694. Claim One In Claim statements, One, trial Commonwealth's Thompson counsel witness "refused to (which affidavit with the court, father." (Mem. Supp. alleges is that, tell the during the opening court, that the had filed an victim) not to testify against [Thompson], her § 2254 Pet. 2.) Thompson asserts that the "[A]ffidavit shows the victim, pleaded the 5th Amendment,[4] notto testify." behalf of to be (Id.) "Counsel, [Thompson's] forced by the stood mute [and] counsel, court this muteness on caused the victim, to testify." (Id. in this case at 3 (citation omitted).) Though the victim in this case initially refused to answer questions on the witness stand, the Commonwealth eventually recalled her and she answered all questions put to her. At no time right did the victim ever against self-incrimination. assert her Fifth Amendment Moreover, as the victim, Thompson's daughter "was not subject to incriminating herself by testifying in [Thompson's] criminal trial." No. 110303, at 2 (Va. show prejudice June 21, resulting Thompson v. 2011). from trial Thus, counsel's Dir. Dep't Corr., Thompson fails to failure to raise "No person shall ... be compelled in any criminal case U.S. Const, amend. V. to be a witness against himself . . . ." 9 the subject of the will be victim's affidavit. Accordingly, Claim One dismissed. B. Claim Two In Claim "refused, to Two, put Thompson in a asserts ^motion Judge and Commonwealth['s] to that counsel dismiss,' deficiently after Attorney both states hearing [sic] on record, that there is no proof of force or threats in this case." Supp. § 2254 Pet. evidence of Circuit Court 5.) force threat against credible evidence 18, 2009 Tr. 148:2-6.) these rapes by convictions." 665, 670 intimidation (West (Va. 151 No. 2009); 1985) . was Sutton (4th Cir. victim of v. the (March [Thompson] accomplished at 3; to see support Va. Commonwealth, cannot show frivolous motion. 2005). existed, intimidation. sufficient 110303, Thompson counsel failed to make a F.3d 141, the "[E]vidence that Thompson, § 18.2-61(A) (Mem. Though Thompson correctly asserts that no or found the Accordingly, Code 324 Ann. S.E.2d deficiency Moody v. his where Polk, 408 Claim Two will be dismissed. C. In Claim Three Claim Three, Thompson alleges that appellate counsel "errored [sic], by filing the wrong indictment number . . . with an all suspended to the Court of Appeals." Pet. 7.) counsel (Mem. Supp. § 2254 It appears to the Court that Thompson faults appellate for appealing a conviction 10 for which he received a suspended sentence, rather than appealing a conviction for which he received an active sentence. that appellate counsel Upon closer review, chose to appeal it is clear Thompson's two convictions for rape by force or intimidation as opposed to his two convictions for rape predicated only on the age of the victim. To establish ineffective assistance of appellate counsel, petitioner must demonstrate required by Strickland. Cir. all 2000) . Bell v. Jarvis, and prejudice, 236 F.3d 149, 164 as (4th Appellate counsel is under no obligation to raise non-frivolous 527, 536 (1986) focusing deficiency a on issues on appeal. Smith v. Murray, 477 U.S. ("[W]innowing out weaker arguments on appeal and those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.") contrary, (internal quotation marks omitted). To appellate counsel is charged with reviewing the record and "selecting the most promising issues for review." Barnes, 463 U.S. of the effective 745, 752 assistance (1983). of Jones v. To overcome the presumption appellate counsel, petitioner must demonstrate that ignored issues were clearly stronger than those presented. Here, Jarvis, the 236 F.3d at 164. evidence at trial intercourse with his daughter while 11 that she Thompson was had sexual less than thirteen years of counsel age chose was to overwhelming.5 dispute the two Understandably, counts of force or intimidation. See supra Part II. Thompson's is submissions any evidence rape appellate predicated Absent entirely from demonstrating appeal of his convictions for rape predicated on his age was "clearly counsel. stronger" Jarvis, demonstrate 236 than deficiency on the issues at F.3d 164. Thus, the part on chose that daughter's by appellate Thompson of an fails appellate to counsel. Accordingly, Claim Three will be dismissed. IV. For the foregoing (Docket No. 5) CONCLUSION reasons, Respondent's will be granted. Motion to Dismiss Thompson's § 2254 Petition will be denied and the action will be dismissed. 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 of a constitutional requirement is debate whether should have right." satisfied (or, been 28 only U.S.C. when for that matter, resolved in a § 2253(c)(2). "reasonable agree different that) manner jurists This could the petition or that the 5 Indeed, the evidence at trial showed that Thompson had sexual intercourse with she was eleven years his of daughter age and fourteenth birthday. 12 regularly beginning when continuing through her issues presented were proceed further.'" (quoting Barefoot Thompson fails ^adequate Slack v. v. to deserve McDaniel, Estelle, meet to 463 this encouragement 529 U.S. U.S. 880, 473, 893 standard. 484 n.4 to (2000) (1983)). Accordingly, a certificate of appealability will be denied. The Clerk is directed to send a copy of this Memorandum Opinion to Thompson and counsel of record. /s/ Robert E. Date: /&* ¢*- 7& tefl* Payne ue Senior United States District Judge Richmond, Virginia 13
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