Lacey v. Clarke

1

Michael E. Lacey, Petitioner, v. Harold W. Clarke, et al, Respondents.

No. 1:23cv287 (RDA/WEF)

United States District Court, E.D. Virginia, Alexandria Division

October 25, 2023

MEMORANDUM OPINION

ROSSIE D. ALSTON, JR. UNITED STATES DISTRICT JUDGE

Michael E. Lacey (“Petitioner” or “Lacey”), a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C § 2254, challenging his August 28, 2020 convictions in the Circuit Court of the City of Norfolk, Virginia for burglary and petit larceny. Dkt. No. 1. The Respondent filed a Rule 5 Answer and a Motion to Dismiss, with supporting briefs and exhibits. Dkt. Nos. 26-28. Petitioner filed responses to the Motion to Dismiss. (Dkt. Nos. 25, 36 37).^[1] Accordingly, this matter is now ripe for disposition. For the reasons that follow, the respondent's Motion to Dismiss will be granted and the Petition will be dismissed with prejudice.

I. PROCEDURAL HISTORY

Lacey was indicted on September 4, 2019, for burglary, in violation of Virginia Code § 18.2-91, and grand larceny, in violation of Virginia Code § 19.2-95. Commonwealth v. Lacey, Case Nos. CR19001748-00 and CR19001748-01. Lacey was tried and convicted by a jury in a two-day trial that began on February 3, 2023 of burglary and the lesser-included offense of petit larceny. On August 7, 2020, the Circuit Court judge sentenced Lacey to eighteen years in prison for burglary and twelve months in jail for petit larceny, and then suspended ten years of the burglary sentence. Final judgment was entered on August 28, 2020.^[2]

Lacey, by counsel, filed a petition for appeal of his August 28, 2020 convictions in the Court of Appeals of Virginia, which asserted a single assignment of error-that the trial court had erred in denying Petitioner's motion to strike because the evidence that he committed the burglary was insufficient. Lacey v. Commonwealth, 0926-20-1; Dkt. No. 28-4 at 1-13.^[3] The court denied Lacey's petition for appeal on March 18, 2021 [Dkt. No. 28-4 at 14-20], and summarized the evidence as follows:

On June 17, 2019, Margaret Harris and her daughter Megan left their Norfolk home to go grocery shopping. David Harris, Margaret's husband, remained at home, but was outside doing yardwork. When Megan and Margaret returned home, they brought their groceries into the kitchen through the front door; Margaret unloaded groceries and asked Megan to get the laundry upstairs. Halfway up the stairs, Megan saw a pair of legs in her parents' bedroom at the top of the stairs. Megan backed down the stairs, motioned to Margaret to get out of the house quickly, and ran outside and told David that someone was in the home. Megan called 911 and waited in the front yard for police. Margaret was out on the front steps of the home, and David went inside.

David saw the intruder run to the back door in the kitchen and try to leave with Margaret's purse. David confronted the intruder and ordered him to drop the purse; the intruder asked David to let him go. David told the intruder to drop the purse again, and the intruder ran toward David. The intruder pushed David, and David put the intruder in a headlock and wrestled him to the floor to detain him. During the altercation, Margaret grabbed a vase and hit the intruder because he was trying to bite David. Margaret also told the family's dog to “get” the intruder; the dog bit the intruder's calf.

Norfolk Police Officer Jacob Medley was patrolling near the Harris house and responded to the 911 call with two other officers. Officer Medley handcuffed the intruder. Margaret's purse was recovered on the floor where David and the intruder had been wrestling. Margaret's purse was worth $100, her wallet was worth $75, and it contained $20 in cash on that day. The purse also contained Margaret's iPhone, which was worth $400.

After police had appellant in custody, an officer located and brought Megan's Apple watch back into the house. The watch had been sitting on the dresser in her parents' bedroom, where Megan first saw appellant's legs. Megan received the brand-new watch for her birthday a few months prior and estimated that it was valued at $500 or $600. Megan, Margaret, and David each identified appellant as the intruder. None had given appellant permission to enter the family home.

Police called an ambulance for the bite wound on the intruder's leg. The intruder was handcuffed to the paramedic gurney, and the paramedics eventually left to transport the intruder to the hospital. At some point during the drive to the hospital, the intruder “slipped out” of the handcuffs and jumped out of the ambulance while it was stopped at a stoplight. Officers Medley and Amos and paramedic Aaron Fisher could not identify appellant at trial.

[Dkt. No. 28-4 at 15-16].

Lacey, by counsel, filed a petition for appeal in the Supreme Court of Virginia, asserting the same alleged error regarding the sufficiency of the evidence, id. at 27, which the court refused on October 22, 2021. Lacey v. Commonwealth, Record No. 210378; Dkt. No. 28-4 at 50.

Lacey has filed numerous collateral civil actions in the Circuit Court for the City of Norfolk, Virginia related to his arrest and convictions.^[4] In an order entered June 7, 2021, styled In re: Civil Filings by Michael E. Lacey, the Circuit Court found that three or more of Lacey's civil filings were frivolous, and therefore “barred [Lacey] from seeking leave to file any action in any Virginia court in forma pauperis unless he alleges facts to show ‘he is in imminent danger of serious physical injury at the time of the filing' or the Court determines it would be a manifest injustice to deny in forma pauperis status.” Dkt. No. 23-8 at 8 (citing Va. Code § 8.01-692).^[5]

On September 7, 2021, while his petition for appeal was still pending in the Supreme Court of Virginia, Lacey filed a petition for a writ of actual innocence in the Court of Appeals of Virginia, arguing that he was innocent of all four offenses (the August 28, 2020 and November 2, 2020 convictions) because of alleged defects in the burglary indictments. Lacey v. Commonwealth, Record No. 0946-21-1 (Ct. App. Va. Oct. 8, 2021); CCT at 880-82.^[6] The Court of Appeals dismissed his petition on October 8, 2021, holding that Lacey's assertion presented “a legal, rather than a factual, claim that Lacey could have raised in his direct appeals,” and that therefore Lacey was not entitled to relief. CCT at 882 (citing Tyler v. Commonwealth, 861 S.E.2d 79, 85 n.8 (Ct. App. Va. 2021)).

On January 4, 2022, Lacey filed a timely pro se habeas petition in the Supreme Court of Virginia challenging his August 28, 2020 convictions.^[7] That court found that Lacey alleged three claims:

In claim (a), petitioner contends a Norfolk police officer, Jesse Amos, violated his constitutional rights when Officer Amos placed his hands into petitioner's pockets and removed petitioner's wallet containing his driver's license, his car keys, and an Apple Watch. Petitioner emphasizes he was not under arrest during this search.

Petitioner asserts this violation allowed the Norfolk Police Department to use his identification to “place” him at the scene of two other burglaries. Petitioner contends this search was a violation of his Fourth Amendment rights.

In claim (b), petitioner contends the violation alleged in claim (a) allowed the Norfolk Police Department to place petitioner's picture on three local news stations after his subsequent escape from police custody while in an ambulance.

In claim (c), petitioner asserts the trial court granted the Commonwealth's motion to nolle prosse a charge related to his escape from the ambulance. Petitioner appears to contend the court's grant of this motion demonstrates the charges could not be sustained because an arrest warrant was never issued and the search of his pockets was illegal.

Dkt. No. 28-5 at 1-2. On February 13, 2023, the Supreme Court of Virginia held that “claims (a), (b), and (c) are barred because these non-jurisdictional issues could have been raised at trial and on direct appeal and, thus, are not cognizable in a petition for a writ of habeas corpus.” Id. at 2 (citing Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974)).^[8] The Supreme Court of Virginia denied Lacey's petition for rehearing on May 12, 2023. Id. at 4.^[9]

On April 25, 2022, while his state habeas petition was pending in the Supreme Court of Virginia, Lacey filed a second petition for a writ of habeas corpus in the Circuit Court challenging his August 28, 2020 convictions. Lacey v. Commonwealth, Case No. CL22007269-00. Lacey only alleged a single claim in this habeas petition-that his attorney was ineffective for allowing the prosecutor “to enter evidence against [Lacey] that was part of an illegal search and seizure.” Id. at 14,145. Because Lacey had knowledge of the facts underlying the April 2022 state habeas petition when he filed his January 2022 petition in the Supreme Court of Virginia, the Circuit Court dismissed the petition on September 26, 2022 as an improper successive petition. Id. (citing Va. Code Ann. § 8.01-654(B)(2) (“No writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition.”). Lacey did not appeal that order.

On March 1, 2023, Lacey filed a letter in this Court accompanied by other documents, stating that he intended to sue his trial counsel's law firm for providing ineffective assistance of counsel at his criminal trial. Dkt. No. 1 at 1. The Court construed the letter and documents as a petition for a writ of habeas corpus and directed Lacey to particularize and amend his petition using a standardized form. Dkt. No. 4. Lacey then filed an amended petition, using the...