Simpson v. Clarke

1

Thomas Bartholomew Simpson, Petitioner, v. Director Harold Clarke, Respondent.

No. 1:22cv794 (LMB/IDD)

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

August 24, 2023

MEMORANDUM OPINION

Leonie M. Brinkema United States District Judge

Thomas Bartholomew Simpson (“petitioner” or “Simpson”), a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the constitutionality of his March 3,2016 convictions in the Circuit Court of Spotsylvania County, Virginia. The respondent has filed a Motion to Dismiss and Rule 5 Answer with supporting briefs and exhibits. [Dkt. Nos. 20-24 29-31], to which Simpson has filed his opposition. [Dkt. Nos 26-28, 33]. Accordingly, this matter is ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition dismissed with prejudice.

I. Procedural History

On December 8,2015, a jury sitting in the Circuit Court of Spotsylvania County found Simpson guilty of armed statutory burglary in violation of Virginia Code § 18.2-91; entering the home of a person with a protective order in violation of Virginia Code § 16.1-253.2; and the lesser included offense^[1] of assault and battery in violation of Virginia Code § 18.2-57. (CR at 189-92).^[2] On February 10,2016, the circuit court sentenced Simpson to: 20 years in prison for armed statutory burglary; a term of three months in jail for entering the home of a person with a protective order; and a term of 12 months in jail for assault and battery. The sentences for assault and battery and entering the home of a person with a protective order were run concurrent with each other. The final judgment order was entered on March 3,2016. (CR at 233-35).

Simpson filed a petition for appeal in the Court of Appeals of Virginia, assigning error to the court's admission of a portion of a recorded 911 call and a series of text screenshots into evidence:

1. The Trial Court erred in admitting a portion of the 911 call containing a child's statement, “Daddy,” in the background because:

a. The child's statement was hearsay and there were no facts introduced to establish that the statement fit within a recognized hearsay exception; and

b. The child's statement was substantially more prejudicial than probative and had a tendency to mislead the jury.

2. The Trial Court erred in admitting screenshot images of text messages because:

a. The screenshots lacked the proper foundation;

b. The screenshots were not relevant; and

c. The screenshots were substantially more prejudicial than probative.

The court granted the petition for appeal and after further briefing and argument the court affirmed Simpson's convictions. Simpson v. Commonwealth, No. 0311-16-2,2017 Va.App. LEXIS 292 (Va. Ct. App. Nov. 21,2017). The opinion summarized the evidence as follows:

Appellant and Erica Simpson^[3] ... married and had two children, J. and Z. In March 2014, after several years of marriage, the couple separated. After appellant moved out of the family home, he began sending threatening text messages to [Erica]. [Erica] took screenshots of many of the messages and uploaded them to her computer, and on April 2, 2015, she obtained a protective order against appellant.

Three weeks later, during the early hours of April 23, [Erica] and her boyfriend, Javelle Rowe, were asleep in [Erica]'s home. They were in the master bedroom with the door locked. J. and Z., who were three and four years old, respectively, were asleep in their bedrooms across the hall. Before going to bed, [Erica] had checked to see that the house was secured and the doors were locked. She had left a small table light burning to provide some illumination for the hallway between the bedrooms.

At approximately 1:30 a.m., [Erica] and Rowe awoke to the sound of shattering glass. A few seconds later, they heard footsteps coming down the hall. [Erica] ran into the suite bathroom while Rowe went to the bedroom door. [Erica] heard a “banging sound” coming from the bedroom door, “[t]he sound it makes when someone hits it or kicks it.” Rowe positioned himself against the door to prevent anyone from entering.

[Erica] left the bathroom and returned to the bedroom to get her phone. She yelled that she was going to call the police and began dialing 911. [Erica] could see Rowe trying to keep the door closed, but the intruder had managed to get a hand and arm inside the door. The intruder was swinging a pipe, and Rowe felt himself being struck on the wrist and head with “a hard metal type of object,... just coming down on me very forceful.”

About that time, [Erica] heard appellant speak to Rowe. Asked at trial how certain she was that the voice she heard was appellant's, [Erica] replied that she was very certain. [Erica] also testified that she heard appellant say[,] “it's okay, [J.],” when “[J.] said [‘]daddy['] in the hallway.” Asked whether J. said anything in return, or whether any of her children said anything, [Erica] replied that “[t]hey said [‘]daddy.[']” Rowe testified at trial that he heard a male voice, but did not recognize the speaker and was not sufficiently familiar with appellant to identify his voice. He heard the male “in conversation” with J. and Z., and noted that the children were “very calm. They were comfortable with whom they were [speaking].”

The intruder stopped hitting Rowe at about the time Rowe heard J. and Z. speaking with someone. A few moments later, Rowe opened the bedroom door and [Erica] was able to go out and check on her children. In the kitchen, [Erica] discovered broken windowpanes in the exterior door and fragments of glass scattered across the floor.

At approximately 2:00 a.m., appellant knocked on the door of a cousin who lived near [Erica]'s home. He told her that his mother's car was “acting up, like it was going to break down,” and asked if he could sleep on her couch. She agreed to let him do so. Shortly before 2:30 a.m., First Sergeant Woodard from the Spotsylvania County Sheriffs Office arrived near the cousin's townhouse. Woodard located a car suspected to be involved in the incident at [Erica]'s home, a red Toyota Corolla, and inspected the area around it. Woodard found a shard of glass beside the vehicle. He also touched the Corolla's hood, and although other vehicles in the area were cold to the touch, the Corolla was warm. The car was towed to the sheriffs office and released a few hours later to its registered owner, appellant's mother. A detective testified at trial that in releasing the vehicle, he was able to drive it out of the sheriffs compound without difficulty.

Over appellant's objection, a portion of the recording of [Erica]'s 911 call was entered into evidence at trial. During the call, [Erica] tells the 911 operator that appellant broke into her house and she thinks he is still inside. The operator tells [Erica] to try and get her children, but [Erica] says, “[n]o, I can hear him. I'm not going out there, I can hear him talking.” A few seconds later, [Erica] tells the operator, “I can hear my kids.” After a few more seconds, a voice in the background says “daddy.”

Simpson, 2017 Va.App. LEXIS 292, *2-5.

The Court of Appeals observed that Simpson had raised an evidentiary error with regard to the 911 tape, and, applying “the standard for non-constitutional harmless error,” found that admitting the statement was harmless error. Id. at *10. At trial, after the 911 tape was played “which included the child's statement, ‘daddy,' audible in the background;” Erica “testified that she heard appellant speak to their son ‘when [J.] said [‘]daddy['] in the hallway;” and “that after the intruder spoke to J.,” she heard her children say “daddy.” Id. at * 11-12. “Thus, the recorded child's statement, if erroneously admitted, was merely cumulative of [Erica]'s testimony that a child said ‘daddy' during the home invasion.” Id. at * 12. The court also found that the trial court had not abused its discretion in finding the text messages relevant, that the probative value outweighed the prejudice, and that a proper foundation had been laid through the unrebutted and unchallenged testimony of Erica. Id. at *14-18.

Simpson raised the same assertions of error in his petition for appeal to the Supreme Court of Virginia, [Dkt. No. 23-11], which, on June 29,2018, refused Simpson's petition for appeal, [Dkt. No. 23-1], and on October 5,2018, denied Simpson's petition for a rehearing. [Dkt. Nos. 23-2, 23-15].

On September 30,2019, Simpson filed a petition for a writ of habeas corpus in the Circuit Court of Spotsylvania County,^[4] asserting the following claims.

a) “Counsel Was Ineffective For Failure To Move For Dismissal Of Screenshot Of The Text Messages When The Commonwealth Failed To Present Their Forensic Analysis Testimony Through Witness Detective Rickens: In Violation Of Petitioner's Sixth And Fourteenth Amendment Rights Of The United States Constitution.”

b) “Counsel Was Ineffective Pursuant To Conflict Of Interest For Presenting To The Jury That Petitioner Was The Author Of The Commonwealth's Evidence Of Screenshot Text Messages: In Violation Of Petitioner's Sixth And Fourteenth Amendment Rights Of The United States Constitution.”

c) “Counsel Was Ineffective For Failure To Object To Hearsay Evidence Pursuant To Son's Statement In 911 Tape: In Violation Of Petitioner's Sixth And Fourteenth Amendment Rights Of The United States Constitution.”

d) “Counsel Was Ineffective For Failure To Object To The Commonwealth Using The 911 Tape of Son's Statement As Identification: In Violation Of Petitioner's Sixth And Fourteenth Amendment Rights Of The United States Constitution.”

(Hab. at 5,6-7).

Over six months later, on April 23,2020, Simpson filed a memorandum in...