Godfrey v. Clarke, No. 7:2018cv00182 - Document 26 (W.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by Senior Judge Jackson L. Kiser on 9/27/2019. (tvt)
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Godfrey v. Clarke Doc. 26 CLERK'SOFFSCE u.s.nlsT.COURT AT DANVILLE,VA FiLED IN TH E UNITED STATES DISTRICT COURT FO R TH E W ESTER N DIST RICT O F V IR G IN IA R O AN O K E DIVISIO N SEP 27 2019 sEP27 2910 2U C. DLhx ctèsm lk DEP CL ALLEN LEE GODFREY ,SR., Petitioner, CivilA ction N o.7:18cv00182 V. M E M O R AN D UM O PIN IO N H A R O LD W .C LAR K E , By: H on.Jacu on L.K iser SeniorU nited StatesD istrictJudge Respondent. PetitionerAllen LeeGodfrey,Sr.,aVirginiainm ateproceeding pro K ,fled apetition for awritofhabeascorpusptlrsuantto28U.S.C.j2254,challenginghis2012convictionsimposed by the Circuit Courtof Roanoke City.This m atter is before me on respondent's motion to dismiss.After reviewing the record,I willgrant respondent's motion and dismiss Godfrey's petition. 1. On April 11, 2012, in the Circuit Court of Roanoke City and pursuant to a plea agreem ent,Godfrey pled guilty to assault and battery of a police officer,attem ptto disarm a police officer,and grand larceny ofam otorvehicle.On August13,2012,Godfrey filed amotion to withdraw hisguilty pleas.Aftera hearing on them otion,the courtdenied iton November 1, 2012.On Decem ber 6,2012,the courtsentenced Godfrey to a totalterm of thirteen years of incarceration and entered finaljudgmentthesnmeday.W ith theassistanceofcotmsel,Godfrey filed an appeal,arguing thatthe trialcourterred as a m atterof 1aw in denying his m otion to withdraw hisguilty pleas.The courtdenied Godfrey'sappealafterconcluding thathisclaim had no m erit.Godfrey did notfurtherappealto the Suprem e CotlrtofV irginia. Godfrey filed a petition forwritofhabeascop us to the CircuitCourtofRoanoke City, Dockets.Justia.com claiming that he was denied the effective assistance of counsel at trial;he was denied due process;theprosecution tampered with video footage ofthe incident;Judge Apgar,the attorney fortheCommonwea1th,andhisownlawyerswereprejudiced againsthim;hewasnotcompetent to enter his pleas;he was denied counsel during his prelim inary hearing because the public defender had requested leave to withdraw but was not permitted to withdraw and, thus, proceeded with a conflict of interest;Judge Apgar knew about the tampering of the video recording;Godfrey wasdenied effective assistance when counseldid notpresenta11ofhisissues on appealand she did notfurther appealto the Suprem e Courtof Virginia even though she çsknew of (hisq wishes'';hismotion to withdraw ilis plea was made in a timely fashion;his motiontowithdraw thepleapresentebafactualandreasonabledefense;hisguiltypleawasmade &tinadvisedly''asaresultofthecoercion ofhistrialattorney;and hism otionto withdraw theplea wasbased on the law.On February 18,2015,the coul'tgranted thehabeaspetition in partasto the claim that counsel failed to file an appealto the Suprem e Courtof Virginia.The court authorized a belated appealfrom the Courtof Appeals of Virginia to the Suprem e Courtof Virginia.The courtdenied and dism issed a11of Godfrèy's other claim s.The courtfotmd that Godfrey'sineffectiveassistanceofcotm selclaim sagainsttrialcounselwerewaived by hisguilty plea because he knew of them atthe tim e ofhis plea;that his other ineffective assistance of cotmselclaimsfailedtmderStricklandv.W ashinaton,466U.S.668 (1984);and thattherestof his claims were defaulted and ban'ed under Slavton v.Parrican, 205 S.E.2d 680 (1974). Although the coul'tdismissed the petition with prejudice,itnoted thatGodfrey's claimsthat related to the voltmtariness of his plea and his m otion to withdraw his plea were dism issed withoutprejudicetoGodfrey'srightto addressthoseissuesinhisbelatedappealtotheSupreme CourtofVirginia. Godfrey did notappealthedism issaloftheremainderofhishabeaspetition. 2 W ith the assistance of counsel, Godfrey filed the authorized belated appeal in the Suprem eCourtofVirginia,arguing thatthe trialcourterred by wrongfully denying hismotion to withdraw hisguilty pleas;the trialcourten' ed by wrongfully denying hism otion for a forensic exnm ination ofthe video evidence;and the trialcourten'ed when he was denied the effective assistance ofcolm sel.lOn M ay 2, 2016,the courtdismissed Godfrey's claims concerning his motion fora forensic exnmination and ofineffective assistance ofcotm selbecause they had not been raised in the CourtofAppealsofVirginia,and refused his claim concerning hism otion to withdraw his guilty plea.Godfrey did notfile a petition fora writofcertiorarito the Suprem e CourtoftheUnited States. On September21,2016,Godfrey filed his second habeaspetition in the CircuitCourtof the City ofRoanoke.Godfrey alleged thathisarrestwastmlawfuldueto an tmspecified Fourth Am endment violation and due to the arresting officer's use of excessive force;his trialand appellate cotmselwere ineffective forthereasonsstated in hisfirsthabeaspetition;and histrial and appellate cotmselwere ineffective in failing to raise claim sofexcessive force and a Fourth Am endmentviolation.Godfrey also soughtto reasserta11the claimsheraised in histirsthabeas petition concelming thevoluntarinessofhisplea and hismotion to withdraw hisplea.On M arch 1,2017,the courtdismissed Godfrey's second state habeas petition.The cotu' t held that his claim s concerning an unlawful azrest and trialcounsel's failure to raise excessive force and Fourth Amendmentclaims were barred as successive tmderVirginia Code j 8.01-654(B)(2), because Godfrey lcnew the facm albasis for those claim s at the tim e he fled his firsthabeas petition, but failed to raise them . The court also held that Godfrey's claims concerning ineffective assistance of trial and appellate counsel for the reasons stated in his ûrsthabeas 1Apparently counselm istakenly filed Godfrey'sbelated appealpetition in the CourtofAppeals; however,counselcorrected the errorby successfully m oving the CourtofA ppealsto transferthepetition forappealtothe Supreme CourtofV irginia. petition,andhisreassertion oftheclaim sconcerning thevoluntarinessofhisplea and hism otion to withdraw his plea, were a1l barred by the doctrine of res iudicata because the courthad previously determinedthoseissuesadversely to Godfrey (by findingthem waivedby hisguilty plea,barred u' nderSlavton,orwithoutmerit),when itdis' m issed hisfirststatehabeaspetition. The courtalso fotmd thatto the extentthey were litigated in the Suprem e CourtofVirginia by the court's refusalofhispetition forappeal,the claim sconcerning the voluntarinessofllisplea and his m otion to withdraw his plea were also ban' ed from habeas review tmder Henrv v. Hudson,576 S.E.2d495,496 (Va.2003)(:$EA)non-jmisdictionalissueraised anddecidedeither in the trialcourtor on directappealfrom the criminalconviction willnotbe considered in a habeascorpusproceeding.'').Finally,asto the claim thatappellate cotmselwasineffective in failing to raise excessive force and Fourth Amendmentclaims,the cout'theld thatGodfrey had notmetllisbttrden underStrickland.Godfrey appealed the dism issalofhis second state habeas petition andthe Suprem eCourtofVirginiarefused theappealon M arch 28,2018. Godfrey filedtheinstantj2254 petition onApril19,2018,raisingthefollowing claims: (1)thestatecircuitcotlrterred inadjudicatinghisstatehabeaspetitionswhen itfailedtofindthat hisfirstappellatecotmselwasineffective and did notgranthim an Elentirely new''appealinstead ofabelated appealto the Supreme CourtofVirginia;(2)thatthe state circuitcourterred in adjudicating Godfrey's second state habeaspetition when itdetermined thathis claims were barredbythedoctrineofresiudicata,thesuccessivepetitionbar,Slavton,and/orHerlrv;and(3) that Godfrey's second appellate counselprovided ineffective assistance when he initially filed thebelated appealin the CourtofAppealsinstead ofthe Suprem e CourtofVirginia,and when hefailedto raise certain claim sin thebelated appeal. II. Godfrey's firsttwo claim sin hisinstantfederalhabeaspetition assertthatthe state court erred in adjudicating Godfrey'sstatehabeaspetitions.Errorsoccuning in statepost-conviction proceedings typically carm ot serve as a basis for federal habeas corpus relief.See W richtv. Alwelone, 151 F.3d 151, 159 (4th Cir. 1998) (tt(Aq challenge to Virginia's state habeas proceedings,cnnnotprovide abasisforfederalhabeasrelief.');Brvantv.M aryland,848 F.2d 492,493 (4th Cir.1988);seealso;W illiams-Bev v.Trickev,894 F.2d 314,317 (8th Cir.1990) (tGgAqn iv rmity in a state post-conviction proceeding does notraise a constitutional issue cognizablein afederalhabeaspetition.'');Vailv.Proctmier,747 F.2d 277,278(5th Cir.1984) (Eclnfinnities in state habeas copusproceedingsdo notconstitute grotmds for federalhabeas relief.'').This isbecause federalhabeas relief is available Etin behalf ofa person in custody ptlrsuanttotheiudcmentofaStatecourt.''28U.S.C.j22544$ (emphasisadded).S'Even where theremaybesomeerrorin statepost-convictionproceedingsthiswouldnotentitle (petitionerqto federalhabeascorpusreliefsince gpetitionerl'sclaim hererepresentsan attack on aproceeding collateralto the detention ofgpetitioner)andnoton thedetention itself.''W illiamsv.M issouri, 640 F.2d 140,144 (8th Cir.1981).Accordingly,IconcludethatGodfrey'sclaimsconcerning errorby the state habeas cotu'tare notcognizable in this federalhabeaspetition and,therefore, willdism issthem .2 2M oreover, even if1were to considerthe underlying claimsasifthey had been raised directly to thiscourqIconcludethatthatthestatecourt'sadjudicationoftheineffectiveassistanceofcounselclaim wasnotcontraryto,oranunreasonableapplicationollclearlyestablishedfederallaw andwasnotbased on an unreasonable determination ofthe facts.Further,theclalm sconcerningthevoluntarinessofhisplea and m otion to withdraw his plea are barred from federalhabeasreview because the state court's findings of proceduraldefault Were based on adequate and independent state grounds, and Godfrey has not demonstrated cause and prejudice ora miscarriage ofjusticeto excuse the default.See Coleman v. Thompson,501U.S.722,729-30,750(1991). 111. Godfrey also allegesthatappellate cotmselprovided ineffective assistance when hefiled Godfrey's belated directappealpetition in the wrong courtand when he failed to raise certain claimson appeal. Godfrey did notpresenthis claim aboutthe misiled appealpetition to the state court. (t(Aqfederalcourtmaynotgrantawritofhabeascopustoapetitionerinstatecustodyunlessthe petitioner has frst exhausted his state rem edies by presenting his claim s to the highest state court.''Bakerv.Corcoran,220 F.3d276,288 (4th Cir.2000);seeO'Sullivan v.Boerckel,526 U.S.838,842 (1999).In order to meetthe exhaustion requirement,a petitioner (tmusthave presented tothestatecourtGboth theoperative factsandthecontrolling legalprinciples.'''Kasiv. Angelone,300F.3d487,501-02 (4th Cir.2002)(quotingM atthewsv.Evatt,105 F.3d 907,911 (4thCir.1997)).t&A claim thathasnotbeenpresentedtothehigheststatecoul'tneverthelessmay betreatedasexhausted ifitisclearthatthe claim would beprocedurally barred understatelqw if the petitionerattem pted to presentitto the state court.''Baker,220 F.3d at288;see Bassettv. Thompson,915 F.2d 932,936-37 (4th Cir.1990).Such claims are deemed simultaneously exhausted and defaulted.See Burketv.Angelone,208 F.3d 172,183 n.11 (4th Cir.1999).If Godfrey weretoraisethisclaim to thestatecotu'tnow,hewould be barred underboth Virginia's habeas corpus statute of limitations and Virginia's bar.on successive petitions.See Va.Code j8.01-654(A)(2)and (B)(2).W hereastatecourt'sinding ofproceduraldefaultisbased on an adequate and independent state ground,that finding is not reviewable in federalhabeas.See Coleman v.Thompson,501U.S.722,729-30 (1991);W illiamsv.French,146 F.3d 203,209 (4th Cir.1998).The Fourth Circuithas recognized both Virginia's successive petition bar, Virginia Code j 8.01-654(B)(2),and Virginia's habeas statute of limitations,Virginia Code 6 j8.01-654(A)(2),asadequateandindependentstate1aw grotmds.SeeClagç' ttv.Anaelone,209 F.3d 370,379 (4th Cir.2000)(holdingaclaim to beprocedtlrally defaultedbecauseithadbeen barred in statecourtby Virginia'srule againstsuccessivewritsl;Grayv.Netherland,518U.S. 152,162 (1996)(holdingthataclaim barredbyVa.Codej 8.01-654(B)(2)wasltnotcognizable in a federalsuit for the writ'');W eeks v.Anqelonq,176 F.3d 249,273-74 (4th Cir.1999) (recognizingVirginia'stimebarasadequateandindependent). A state prisoner can obtain federal habeas review of a procedlzrally defaulted claim, however,ifheshowseither(1)causeandprejudiceor(2)amiscaniageofjustice.Coleman v. Thompson,501U.S.722,750 (1991).To show cause,apetitionermustdemonstratethatthere wereGtobjectivefactors,''externaltohisdefense,whichimpededhim from raisinghisclaim atan earlierstage.M urrayv.Canier,477 U.S.478,488 (1986).To show prejudice,apetitionermust show thatthe alleged constimtionalviolation worked to lnis actualand substantialdisadvantage, infecting hisentiretrialwith errorofa constitutionalm agnitude.ld.at488.The(ûmiscarriageof J 'ustice''exception is a nnrrow exception to the cause requirem ent.A habeas petitioner falls within thisnarrow exception ifhe can dem onstratethata constitm ionalviolation has isprobably resulted''in the conviction ofone who is ttactually irmocent''of the substantive offense.Id.at 496.Act-ual innocence m eans ttfactual ilm ocence not m ere legal insuffciency.''Bousley v. UnitedStates,523U.S.614,(1998).Inthiscase,nothingintherecordsupportsaclaim ofactual innocence and Godfrey offers nothing to excuse his procedural default of this claim . Accordingly,Iconcludethatthisclaim isbarred from federalhabeasreview and,therefore,will dismissit. IV . Godfrey also alleges that appellate counsel was ineffective in failing to m alce certain argllm ents in Godfrey's belated direct appeal.Godfrey raised this claim in his second state habeaspetition mld the courtaddressed the claim on itsmerits.3W hen reviewing a habeasclaim thathasbeen adjudicated on themeritsby astatecourt,afederalcourtmay granthabeasrelief . onlyifthestatecourtadjudication(1)(tresulted inadecision thatwascontraryto,orinvolvedan lmreasonable application of,clearly establisheè Federallaw,as detennined by the Supreme CourtoftheUnited States,''or(2)ttresulted in adecision thatwasbased on an um easonable determination of the facts in light of the evidence presented in the state coul'tproceeding.'' j2254(d).A statecourt'sadjudication isconsideredcontrarytoclearly established federallaw if the state court arrives at a conclusion opposite to that reached by the Suprem e Court on a question of1aw orifthe state courtdecidesa case differently than the Suprem e Courthason a setofmaterially indistinguishable facts.W illiamsv.Tavlor,529 U.S.362,412-13 (2000).A statecourtdecision unreasonably appliesclearly established federal1aw ifthe courtidentifiesthe con-ectlegalprinciple,butllnreasonably applies itto the facts ofthe case.Id.at413.Itis not enough that a state court applied federal 1aw incorrectly;relief m ay only be granted if the application offederal1aw is unreasonable.ld.at411.Factualdeterminationsm ade by the state court are ttprestuned to be correct,'' and the petitioner has the burden of rebutting that presllmptionofcorrectnessbytGclearandconvincingevidence.''j2254(e)(1). 3 In his second state habeas petition,Godfrey argued that appellate counselwas ineffective in failing to raise Fourth Am endm entand excessive force claims on direct appeal.To the extent Godfrey m ay now be referring to other claim s he' wanted raised on direct appeal, those claim s w ould be simultaneously exhausted and defaulted because Godfrey could have raised them in his second state habeaspetition,did not,andcnnnotnow raisethem tothestatecourt.SeeVa.Codej 8.01-654(A)(2)and (B)(2).Moreover,Godfreyhasnotdemonstratedcauseandprejudiceoramiscarriageofjusticetoexcuse hisdefaultofthose claim s.Accordingly,any ineffective assistance of appellate counselclaim notraised in hissecond state habeaspetition isbarred from federalhabeasreview. 8 To state a constitutional claim for ineffective assistance of cotmsel, a petitioner must satisfy the two-pronged Strickland v. W ashindon test by showing (ûthat cotmsel's performance was deficient,''and (2) tlthatthe defcientperformance prejudiced the defense.'' 466 U.S.668, 686-87 (1984).isludicial scrutiny of counsel's performance must be highly deferential,''and counselisEEperm itted to setpriorities,determine trialstrategy,and press those claims with the greatestchancesofsuccess.''Id.at689, .United Statesv.M ason,774 F.3d 824, 828(4thCir.2014). To satisfy Strickland'sfirstprong,a petitionerm ustshow lsthatcotmselm ade errors so seriousthatcounselwasnotfunctioning asthe tcotmsel'guaranteed the defendantby the Sixth Am endment.'' Strickland, 466 U.S. at 687-88. ûll-he question is whether an attorney's representation nm ounted to incompetence lm der 'prevailing professionalnorms,'notwhether it deviatedfrom bestpracticesorcommon custom.''Harrinctonv.Richter,562U.S.86,105(2011) (quoting Stricldand,466U.S.at690).Tosatisfythesecondprong,apetitionermustdemonstrate that,but for counsel's alleged error,there is a (freasonable probability that the result of the proceeding would havebeen different.''Strickland,466 U.S.at694.&;A reasonableprobability is aprobability sufficientto lm denninethe confdence ofthe outcom e.''ld.CGAn attorney'sfailure to raise ameritlessargumentgqcnnnotfonn thebasisofa successfulineffectiveassistance of counsel claim because the result of the proceeding would not have been different had the attorney raisedtheissue.''United Statesv.Kimler,167 F.3d 889,893 (5th Cir.1999);see also M oorev.United States,934F.Supp.724,731(E.D.Va.1996). Cou'nseldoesnotrenderineffective assistmw e on appealby failing to presentevery non- fzivolousissuein thepetition.Jonesv.Bnrnes,463 U.S.745,754 (1983), .Lawrencev.Brnnker, 517F.3d700,709(4th Cir.2008).Rather,itSiisthehallmarkofeffectiveappellateadvocacy''to 9 selectthe strongestclaim s and focus on those on appeal.Burger v.Kemp,483 U.S.776,784 (1987) (internalquotation marks and citation omitted).ln applying Strickland to claims of ineffectiveassistanceofcounselon apjeal,areviewingcourtmustaccord appellatecounselthe itpresllmption thathedecided which issueswerem ostlikely to afford reliefon appeal.''Pnzettv. Thompson,996 F.2d 1560,1568 (4th Cir. 1993).ltçloqnly when ignored issues are clearly strongerthan those presented'''should afederalhabeascourtfind appellate cotmselineffective. Lam ence,517F.3d at709 (quoting Grav v.Greer,800F.2d 644,646 (7thCir.1986)andciting Smithv.Robbins,528U.S.259,288(2000)). In adjudicating Godfrey's ineffective assistance of counselclaim in llis second state habeaspetition,the courtdetennined that: gGodfreyjhasnotmethisStricklandbtudenwith respecttohisallegation ...that his appellate counselwas ineffective forfailing to raise Fourth Am endm entand excessive force argum ents on appeal to the Suprem e Court of Virginia. The determination ofthe best claims to be raised on appealij a m atter entrusted to counsel'stacticaljudgment.Jonesv.Barnes,463U.S.745 (1983).Counselisnot required to appeal on a11grounds sought by the defendant,or even to present every colorable claim .tT he process ofwinnowing outweakerclaims on appeal and focusing on those most likely to prevail, far from being evidence of incompetence,isthe hallm ark ofeffective appellate advocacy.''Burcerv.Kem p, 483 U.S.776,784 (1987).Once appointed,it is for counsel to decide what questions should be raised.Townesv.Commonwea1th,234 Va.307,320-21,362 S.E.2d650(1987). GodfreyhasnotdemonstratedthattheomittedappellateclaimswereGsclearly stronger''thanthe claimsthatwere raised by counsel.Afterreviewing the record,lconclude thatthe state court's adjudication ofGodfrey'sclaim wasnotcontrary to,oran unreasonable application of,clearly established federal 1aw and was not based on an tmreasonable determ ination of the facts. Accordingly,1willdismisstllisclaim . IV . Forthe reasons btated,Iwillgrantrespondent'smotion and dismissGodfrey's j2254 petition. ENTERED thi 27th XXX day ofSeptember,2019. ENIO UNITED STATES DISTRJCT JUDGE
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