Yo v. Lester, No. 3:2013cv00701 - Document 15 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 07/01/14. (kyou, )(copy mailed to Pro Se party)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK, U.S. DISTRICT COURT RICHMOND, VA YO, Petitioner, Civil Action No. 3:13CV701 v. LAYTON LESTER, Respondent. MEMORANDUM OPINION Yo, formerly known as Mario Ballard, aVirginia prisoner proceedingpro se, brings this petition for awrit ofhabeas corpus under 28 U.S.C. §2254 ("§ 2254 Petition").1 Yo challenges his conviction in the Circuit Court for the County ofNottoway, Virginia ("Circuit Court"). Yo demands relief upon the following grounds: Claim 1 Yo failed to receive the effective assistance ofcounsel: (a) (b) (c) Claim 2 Counsel "had amental disorder while he was representing the Petitioner." (§ 2254 Pet. 5.) "Counsel committed acts, such as not objecting during trial, not filing pretrial motions [and], not allowing Petitioner's witnesses to review a video that was used against him during his trial." (Id.) "Counsel was thoroughly steeped in corruption." (Id. (citations omitted).) "Trial judge knew that Petitioner's counsel was corrupted when he appointed him to represent Petitioner; trial judge biased the trial jury against the Petitioner; Trial judge allowed an ambiguous indictment to stand against Petitioner; and trial judge allowed the accuser not be confronted by Petitioner." (Id. at 6 (citations omitted).) 1The Court employs the pagination assigned to Yo's §2254 Petition and its attachments by the CM/ECF docketing system. The Court corrects the capitalization and spelling in the quotations to Yo's submissions. 2 "In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of Counsel for his defence." U.S. Const, amend. VI. Claim 3 Prosecutorial bias ... the prosecution informed the trial jury of Petitioner's prior conviction and incarceration through its voir dire ofits witnesses ...." (Id. at 8 (citations omitted).) Claim 4 "Petitioner's indictment was ambiguous because it stated all ofthe elements for the Code of malicious wounding. It was not specific as to what he did." (Id. at 10.) Respondent has moved to dismiss. Yo has responded. For the reasons set forth below, the Court will dismiss Claims 2through 4as procedurally defaulted and Claims 1(a) through (c) as lacking in merit. I. PROCEDURAL HISTORY Ajury in the Circuit Court found Yo guilty ofmalicious wounding. Commonwealth v. Ballard, No. CR090000083-00, at 1-3 (Va. Cir. Ct. Jan. 8, 2010). Thereafter, the Circuit Court sentenced Yo to ten years of imprisonment. Id. at 2. A. First State Habeas Petition On March 1, 2011, Yo filed apetition for awrit of habeas corpus with the Supreme Court of Virginia ("First State Habeas Petition") alleging, inter alia, that he failed to receive the effective assistance of counsel in conjunction with the pursuit of an appeal. On July 29, 2011, the Supreme Court granted Yo's First State Habeas Petition with respect to his claim that he had failed to receive the effective assistance of counsel in conjunction with his appeal and permitted Yo to pursue adelayed appeal. Ballard v. Warden, No. 110548, at 1(Va. July 29,2011). The Supreme Court of Virginia dismissed the remainder of Yo's claims "without prejudice to the petitioner's right to file asubsequent petition for awrit habeas corpus limited to the ground or grounds assigned inthe present petition." Id. B. Decision in the Court of Appeals ofVirginia and Second State Habeas Petition Thereafter, Yo filed an appeal to the Court ofAppeals ofVirginia, wherein he asserted "the evidence was insufficient to prove he committed malicious wounding because no reasonable juror could find he acted with malice." Ballard v. Commonwealth, No. 1760-11-2, at 1(Va. Jan. 18, 2012). The Court ofAppeals ofVirginia rejected that claim and noted: "Whether or not an accused acted with malice is generally a question of fact and may be proved by circumstantial evidence." Canipe v. Commonwealth, 25 Va App 629, 642, 491 S.E.2d 747, 753 (1997). "Malice and heat of passion are mutually exclusive: malice excludes passion, and passion presupposesi the absence of malice." Barrett v. Commonwealth, 231 Va. 102, 106, 341 S.E.2d 190 192(1986). "Heat of passion is determined by the nature and degree of the provocation and may be founded upon rage, fear, or acombination of both." Id. (citations omitted). "Under ordinary circumstances, an intent to maim may not be presumed from ablow with a bare fist. But an assault with a bare fist may be attended with such circumstances of violence and brutality that an intent to kill may be presumed." Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273 (1969). , ,+ Appellant and the victim had a disagreement over a remote control to a television. The victim was seated in a chair when appellant approached him and struck him numerous times about the face with his fist. After the incident, appellant's hand was swollen and appellant said he had gotten mad, lost his temper, and wished he had not "touched" the victim. The victim suffered a swollen and bruised eye and face and lacerations above his eyes as a result of the beating. Avideo ofthe incident was played for the jury. Appellant struck the seated victim multiple times in the face, causing appellant's hand to swell and the victim to suffer bruises, lacerations, and a swollen face. From this evidence, the jury could reasonably infer appellant acted with malice and he purposefully and cruelly intended to inflict bodily injury upon the victim. Appellant asserts he acted in the heat ofpassion after the victim provoked him by striking appellant's hand with the remote control. However, even assuming the jury accepted this version of the incident, the victim's act did not provide the requisite provocation to dispel the malicious nature of appellant's violent response. Moreover, the jury was clearly permitted to reject this account ofthe event. Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) ("The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented."). From the evidence presented, the jury could conclude beyond areasonable doubt that appellant committed malicious wounding. Id. at 2-3. Yo pursued apetition for appeal to the Supreme Court ofVirginia. The Supreme Court ofVirginia dismissed that appeal because Yo failed to comply with Virginia Supreme Court Rule 5:17(c)(l)(iii), in that "[the petition for appeal] does not list the specific error(s) in the lower court proceedings upon which appellant intends to rely." Ballard v. Commonwealth, No. 120131, at 1 (Va. Feb. 24, 2012). Yo filed apetition for awrit of habeas corpus with the Supreme Court of Virginia ("Second State Habeas Petition"), wherein he asserted, inter alia, adenial ofhis right to appeal from the Court of Appeals of Virginia to the Supreme Court of Virginia. On June 26, 2012, the Supreme Court ofVirginia granted Yo's Second State Habeas Petition with respect to his claim about the denial of his right to appeal. Ballard v. Warden ofthe Keen Mountain Corr. Or., No. 120470, at 1(Va. June 26, 2012). The Supreme Court of Virginia dismissed the remainder of Yo's claims "without prejudice to the petitioner's right to file asubsequent petition for awrit habeas corpus limited to the ground or grounds assigned in the present petition." Id C. Decision of the Supreme Court ofVirginia on Direct Appeal In his subsequent petition for appeal to the Supreme Court of Virginia, Yo raised the following grounds for relief: [A] The Court of Appeals erred in the misapplication of Va. Code §18.251 by misinterpreting the term "intent" in the statute. [B] The Court of Appeals in denying Appellant his defense of "Heat of Passion" when it was dubious that he struck the accuser first. [C] The Court of Appeals erred in denying Appellant's Petition for Appeal. Petition for Appeal at 1, Ballard v. Commonwealth, No. 121284 (Va. filed July 16, 2012). The Supreme Court ofVirginia refused Ballard's petition for appeal. Ballard v. Commonwealth, No. 121284, at 1 (Va. Jan. 15,2013). D. Fourth State Habeas Petition On March 20,2013, Yo filed another petition for awrit ofhabeas corpus with the Supreme Court ofVirginia ("Fourth State Habeas Petition"). In that petition, Yo asserted that he failed to receive the effective assistance of counsel because "my trial lawyer (a Denis J. McCarthy) has been disbarred for being thoroughly steeped in corruption, which he claims was due to amental disorder, while he was representing me." Petition for Writ of Habeas Corpus, Ex. A1| 2, Yo v. Warden ofthe Lunenburg Corr. Cm, No. 130481 (Va. filed Mar. 20, 2013). Yo also attempted to incorporate by reference all ofthe claims he previously had raised in his prior state habeas petitions. Id 14. The Supreme Court of Virginia dismissed Yo's Fourth State Habeas Petition. Yo v. Warden ofthe Lunenburg Corr. Cm, No. 130481, at 3(Va. filed Apr. 15, 2013). The Supreme Court refused Yo's attempts to incorporate by reference claims from his prior state habeas proceedings. Id at 2-3 (citing Va. Code §8.01-654(B)(1); Va. Code 8.01655; Va. Sup. Ct. R. 5:7(a)(2)). The Supreme Court further noted that "this Court has 'repeatedly rejected attempt by aparty to incorporate by reference arguments made in another court or in another case.'" Id at 3(quoting Winston v. Commonwealth, 604 S.E.2d 21, 54 (Va. 2004)). Additionally, the Supreme Court of Virginia found that Yo's ineffective assistance of counsel claim lacked merit. Id. at 2. II. EXHAUSTION AND PROCEDURAL DEFAULT State exhaustion "'is rooted in considerations of federal-state comity,'" and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best serve the policies of federalism.'" Slavekv. Hinkle, 359 F. Supp. 2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 &n.10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations ofits prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, apetitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether apetitioner has used all available state remedies, the statute notes that ahabeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... ifhe has the right under the law ofthe State to raise, by any available procedure, the question presented." 28 U.S.C. §2254(c). The second aspect of exhaustion requires apetitioner to have offered the state courts an adequate "'opportunity'" to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional internal quotation marks omitted). "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including astate supreme court with powers of discretionary review), thereby alerting that court to the federal nature ofthe claim." Id (quoting Duncan, 513 U.S. at 365-66). Fair presentation demands that apetitioner must present "'both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276,289 (4th Cir. 2000)). The burden of proving that aclaim has been exhausted in accordance with a"state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994). When the Supreme Court ofVirginia grants apetition for awrit ofhabeas corpus with respect to the right to pursue abelated direct appeal and dismisses the remaining claims in the habeas petition without prejudice, the petitioner has not properly exhausted those dismissed claims. See Johnson v. Johnson, No. 3:07cv524,2008 WL 4155363, at *3 (E.D. Va. Sept. 9, 2008) (citing Richardson v. Dillman, No. 7:06cv359,2007 WL 186666, at *3 (W.D. Va. Jan. 19, 2007)); see also Faison v. Hinkle, No. 2:10cv557,2011 WL 3321347, at *5-7 (E.D. Va. June 8, 2011). Rather, in order to satisfy the exhaustion requirement, after the conclusion ofhis direct appeal, the petitioner must file anew state petition raising the claim or claims that were dismissed without prejudice. See Johnson, 2008 WL 4155363, at *3; Faison, 2011 WL 3321347, at *5. Thus, Yo failed to satisfy the exhaustion requirement for Claims 2through 4 because he failed to set forth these claims in his Fourth State Habeas Petition. "A distinct but related limit on the scope offederal habeas review is the doctrine of procedural default." Breard v. Pruelt, 134 F.3d 615,619 (4th Cir. 1998). This doctrine provides that "[i]f astate court clearly and expressly bases its dismissal of ahabeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). Afederal habeas petitioner also procedurally defaults claims when he or she "fails to exhaust available state remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred."' Id. (quoting Coleman, 501 U.S. at 735 n.l).3 The burden of pleading and proving that aclaim is procedurally defaulted rests with the state. Jones , Sussex IState Prison, 591 F.3d 707,716 (4th Cir. 2010) (citing cases). Absent ashowing ofcause and prejudice or afundamental miscarriage ofjustice, this Court cannot review the merits ofadefaulted claim. See Harris v. Reed, 489 U.S. 255,262 (1989). Yo failed to properly present Claims 2through 4to the Supreme Court ofVirginia. If Yo attempted to raise such claims now with the Supreme Court ofVirginia, that court would find the claims barred by the rule in Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974) because Yo could have raised, but failed to raise, such claims on direct appeal. Slayton constitutes an adequate and independent state procedural rule when so applied. See Mu 'Min v. Pruelt, 125 F.3d 192,196-97 (4th Cir. 1997). Thus, Yo procedurally defaulted Claims 2through 4. Yo fails to asserts any basis for excusing his default. Accordingly, Claims 2through 4will be DISMISSED. III. INEFFECTIVE ASSISTANCE OF COUNSEL To demonstrate ineffective assistance ofcounsel, aconvicted defendant must show first, that counsel's representation was deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,687 (1984). To satisfy the deficient performance prong ofStrickland, the convicted defendant must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within the wide range ofreasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting 3Under these circumstances, even though the claim has not been fairly presented to the Supreme Court of Virginia, the exhaustion requirement is "teclmically met" H^ri^rue' 443 F.3d 342, 364 (4th Cir. 2006) (citing Gray v. Netherland, 518 U.S. 152,161-62 (1990)). Strickland, 466 U.S. at 689). The second component ofStrickland, the prejudice component, requires aconvicted defendant to "show that there is areasonable probability that, but for counsel's unprofessional errors, the result ofthe proceeding would have been different. A reasonable probability is aprobability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance ofcounsel claims, it is not necessary to determine whether counsel performed deficiently ifthe claim is readily dismissed for lack ofprejudice. Id. at 697. In Claim 1(a), Yo complains that his attorney had amental disorder. In Claim 1(c), Yo also asserts that his attorney was "steeped in corruption." (§ 2254 Pet. 5.)4 General allegations ofthis ilk fail to demonstrate that Yo received the ineffective assistance ofcounsel. See Strickland, 466 U.S. at 690. Under Strickland, Yo "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. (emphasis added); see, e.g., UnitedStates v. Ross, 338 F.3d 1054,1056 (9th Cir. 2003) ("[A] lawyer suspended or disbarred... is not per se ineffective .... To prove ineffective assistance, defendants in these cases (like everyone else) [must] identify 'actual errors and omissions by counsel that aconscientious advocate would not have made,' and show that they suffered prejudice from those errors." (citation omitted) (quoting United Slates v. Mouzin, 785 F.2d 682, 696 (9th Cir. 1986))); Smith v. Ylst, 826 F.2d 872, 876 (9th Cir. 1987) (concluding mental illness ofattorney is not per se ineffective). Accordingly, Claims 1(a) and 1(c) will be DISMISSED. 4yo attached newspaper articles to his §2254 Petition which reflect that his trial counsel misappropriated approximately $20,000.00 in client funds, suffered from depression, and ¢dered his law license in August of 2010, roughly eight months after Yo's tnal. (See § 2254 Pet. Ex. A.) In Claim 1(b), Yo asserts that his attorney "committed acts, such as not objecting during trial, not filing pretrial motions, not allowing Petitioner's witnesses to review avideo that was used against him during his trial." (§ 2254 Pet. 5.) Yo, however, once again fails to provide sufficient details regarding counsel's omissions so that aCourt could find counsel acted unreasonably. For example, Yo fails to identify any viable objection counsel could have made and fails to identify any pretrial motion that may have aided the defense. See Sanders , United States, 373 U.S. 1,19 (1963) (finding denial ofhabeas action appropriate where it "stated only bald legal conclusions with no supporting factual allegations"). Given those omissions, Yo fails to demonstrate that counsel acted deficiently or that counsel's omissions prejudiced Yo. Finally, Yo faults counsel for not allowing one ofYo's witnesses to view the videotape of Yo hitting the victim with his fists. Yo, however, fails to explain, as he must, how showing the tape to his witness would have resulted in any testimony more favorable to Yo. Cf. UnitedStates v. Terry, 366 F.3d 312, 316 (4th Cir. 2004) (observing that where apetitioner faults counsel for not calling awitness, apetitioner must provide "concrete evidence ofwhat [the witness] would have testified to in exculpation," so that the reviewing court can adequately assess the significance ofthe decision not to call the witness); see Bassette v. Thompson, 915 F.2d 932,941 (4th Cir. 1990) (dismissing claims where petitioner failed to make an adequate proffer of testimony ofomitted witnesses). Accordingly, Claim 1(b) will be DISMISSED because Yo fails to demonstrate deficiency orprejudice. 10 IV. CONCLUSION Yo's claims will be DISMISSED. The Motion to Dismiss (ECF No. 5) will be GRANTED. ThepetitionforawritofhabeascorpuswillbeDENIED. The action will be DISMISSED. Yo's Motion for Judgment (ECF No. 12) will be DENIED. An appeal may not be taken from the final order in a§2254 proceeding unless ajudge issUes acertificate ofappealability ("COA"). 28 U.S.C. ,2253(c)(1)(A). A will not issue COA unless aprisonermakes "asubstantial showing ofthe denial ofaconstitutional right." 28 U.S.C. 82253(c)(2) This requirement is satisfiedonly when"reasonablejuristscould debate whether (or for that matter, agree that) the petition should have been resolved in adifferent manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack, McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot, Estelle, 463 U.S. 880, 893 *,4 (1983)). Yo fails to satisfy this standard. A certificate ofappealability will be DENIED. An appropriate Final Order shall accompany this Memorandum Opinion. "jamesRTSpencer Senior U. S. District Judge Date:7'/-/f Richmond, Virginia 11
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