Matherly v. Director

LAWRENCE MATHERLY, JR., Petitioner, v. DIRECTOR, V.A. D.O.C., Respondent.

CASE NO. 7:16CV00459

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

July 27, 2017

MEMORANDUM OPINION

By: Norman K. Moon Senior United States District Judge

Lawrence Matherly, Jr., a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on a judgment by the Danville City Circuit Court for forcible sodomy, consensual sodomy, and indecent liberties by a custodian. Respondent filed a motion to dismiss Matherly's § 2254 petition, and Matherly responded, making the matter ripe for disposition. After review of the record, I grant the motion to dismiss.

I. Factual and Procedural Background

In February 2013, the victim's mother discovered troubling Facebook messages between the victim,¹ and Matherly.² At Matherly's trial, the victim testified that, in September 2012, Matherly had rubbed her breasts over and underneath her shirt, rubbed her vagina over and underneath her underwear, and then he rubbed his penis "next to my pussy."³ Trial Tr. vol. 2, 37(Sep. 25, 2013). Further, the victim stated that Matherly had touched her butt with his hand and had put "his dick . . . in [her] butt," and that Matherly had put "[h]is private in [her] butt" again in January. Trial Tr. vol. 2, at 39. She said that each time Matherly went "[i]n and out" of her, and that she bled when she used the bathroom afterward. Id. at 50.

After a bench trial, the Danville City Circuit Court convicted Matherly of two counts of forcible sodomy, two counts of consensual sodomy, and three counts of indecent liberties by a custodian, and sentenced him to an active sentence of twenty-four years. Matherly appealed, but the Virginia Court of Appeals and the Virginia Supreme Court denied his petitions. In 2015, Matherly filed a habeas petition in the Virginia Supreme Court, which the court dismissed on June 29, 2016.

II. Claims

Matherly raises six claims in his current petition:

1. Petitioner was convicted twice for the same offenses in violation of the Double Jeopardy Clause;

2. The Commonwealth presented no evidence corroborating the complaining witness' testimony;

3. The Commonwealth did not prove the mental incapacity of the complaining witness in violation of the Due Process Clause;

4. The Commonwealth did not prove that a third party was involved in the forcible sodomies in violation of the Due Process Clause;

5. The Commonwealth did not prove that the petitioner was acting in a custodial capacity when he committed the indecent liberties offenses in violation of the Due Process Clause; and6. The prosecution did not disclose exculpatory evidence under Rule 3A:11(b)(1), RPC Rule 3.8(d), and Brady v. Maryland 373 U.S. 83 (1963) in violation of the Due Process Clause.

Respondent has conceded that Matherly has exhausted his claims in state court.

III. Standard of Review

To obtain federal habeas relief, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Under 28 U.S.C. § 2254(d), however, the federal habeas court may not grant a writ of habeas corpus based on any claim that a state court decided on the merits unless that adjudication:

(1) Resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) Resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). "Where, as here, the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable." Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Under this standard, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could agree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (omitting internal quotations).

IV. Discussion

A. Procedural Default

The United States Supreme Court has long held that a state prisoner's habeas claims may not be entertained by a federal court "when (1) 'a state court [has] declined to address [those] claims because the prisoner had failed to meet a state procedural requirement,' and (2) 'the statejudgment rests on independent and adequate state procedural grounds.'" Maples v. Thomas, 565 U.S. 266, 280 (2012) (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)). A procedural rule is adequate "if it is regularly or consistently applied by the state court," and independent "if it does not 'depend[] on a federal constitutional ruling.'" Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999) (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).

On habeas review, the Virginia Supreme Court found Claims 2 through 6 procedurally defaulted under Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974). Parrigan is an adequate and independent state procedural bar that arises when a petitioner could have raised an issue at trial and on direct appeal, but failed to do so. See Vinson v. True, 436 F.3d 412, 417 (4th Cir. 2006) (Parrigan is an adequate and independent bar.). Matherly failed to bring Claims 2 through 6 at trial or during his direct appeal proceedings; therefore, they are procedurally barred under Parrigan.

"If a claim is defaulted, then petitioner must fail on that claim unless he can show that cause and prejudice or a fundamental miscarriage of justice might excuse his default." Bell v. True, 413 F. Supp. 2d 657, 676 (W.D. Va. 2006) (citing Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998)). The "cause" prong requires a petitioner to demonstrate that there were "objective factors," external to his defense, which impeded him from raising his claim at an earlier stage. Murray v. Carrier, 477 U.S. 478, 488 (1986). The "prejudice" prong requires a petitioner to show that the alleged constitutional violation worked to his actual and substantial disadvantage, infecting his entire trial with error of a constitutional magnitude. Id. at 495. Meanwhile, the fundamental miscarriage of justice exception requires a petitioner to prove his actual innocence. Schlup v. Delo, 513 U.S. 298, 324-25 (1995).

Matherly never offers any information regarding his failure to prevent his default; therefore, Claims 2 through 6 are barred from federal habeas review.⁴

B. Merits

In Matherly's only undefaulted claim, he contends that the trial court violated the Double Jeopardy Clause by sentencing him twice for the same offenses under Va. Code §§ 19.2-67.1(A)(2) and 19.2-361(B).

The Fourth Circuit has set forth the principles of the Double Jeopardy Clause as follows:

The Double Jeopardy Clause states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." In the context of a single criminal prosecution, the clause "protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969). This guarantee simply prevents "the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983); United States v. Martin, 523 F.3d 281, 290 (4th Cir. 2008). It does not, however, prohibit the legislature from punishing the same act or course of conduct under different statutes. Albernaz v. United States, 450 U.S. 333, 344 (1981).

Thus, when a defendant violates more than one statute in a single course of conduct, a court may impose multiple punishments without violating the Double Jeopardy Clause if the legislature authorizes it to do so. United States v. Terry, 86 F.3d 353, 355 (4th Cir. 1996). Ultimately, our "only task is to determine whether Congress intended to impose multiple punishments." United States v. Chandia, 514 F.3d 365, 372 (4th Cir. 2008). For "the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them [] resides wholly with the Congress." Whalen v. United States, 445 U.S. 684, 689 (1980).

To make that determination, we are guided by the Supreme Court's decision in Blockburger v. United States, 284 U.S. 299 (1932). "[W]here thesame act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires a proof of a fact which the other does not." Id. at 304. When applying this test in multiple punishment cases, our "exclusive focus" is "upon the elements of the statutory provisions in question," not the particular facts of the underlying case. United States v. Allen, 13 F.3d 105, 109 n.4 (4th Cir. 1993). If each provision requires proof of a distinct element, "then multiple punishments are presumed to be authorized absent a clear showing of contrary Congressional intent." Terry, 86 F.3d at 356 (citing Albernaz, 450 U.S. at 340).

United States v. Ayala, 601 F.3d 256, 264-65 (4th Cir. 2010).⁵

The Virginia Court of Appeals discussed the issue at length:

[Matherly] was indicted for and convicted of forcible sodomy, in violation of Code § 18.2-67.1(A)(2), and sodomy, in violation of Code § 18.2-361(B). See R. at 71. The crime of forcible sodomy prohibits "cunnilingus, fellatio, anilingus, or anal intercourse when "[t]he act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness." Code § 18.2-61.1(A)(2). The Commonwealth prosecuted [Matherly] for forcible sodomy due to the victim's mental incapacity. The crime of sodomy under Code § 18.2-361(B) prohibits carnal knowledge "by the anus or by or with the mouth" of a

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