Winslow v. Clarke

KERRY LEE WINSLOW, Petitioner, v. HAROLD W. CLARKE, Respondent.

Civil Action No. 3:15CV440

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

September 8, 2016

MEMORANDUM OPINION

Kerry Lee Winslow, a Virginia inmate proceeding pro se and in forma pauperis, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition" ECF No. 1) challenging his convictions in the Circuit Court for the City of Portsmouth ("Circuit Court"). Winslow pled guilty to grand larceny of a firearm and possession of a firearm by a convicted felon in the midst of his jury trial and after he had testified in his defense. As outlined below, the majority of Winslow's claims challenge portions of his trial prior to the entry of his guilty plea. In his § 2254 Petition, Winslow argues entitlement to relief upon the following grounds:¹

Claim One: "Appointed trial counsel, Amy Kirby, . . . did not render effective assistance of counsel at the pre-trial plea negotiation process." (Id. at 7.)

Claim Two: "The petitioner was shackled in the courtroom, in full view of the jury, without manifest necessity . . . ." (Id. at 8.)

Claim Three: "Former trial counsel was ineffective[²] in the following aspects inducing the petitioner to plead guilty under duress, making such plea unlawfully induced" (id. at 9):

(a) "For failing to object to the petitioner appearing handcuffed and shackled in full view of the jury and commenting about petitioner being handcuffed and shackled to the jury during counsel's opening argument" (id.);

(b) "Counsel was ineffective for not interviewing witness Jerry Evans before placing him on the stand inasmuch as this witness testified adversely to the petitioner" (id. at 9);

(c) "Counsel was ineffective for failing to exclude yet another witness, the petitioner's mother, whom would have testified that the petitioner was at her house immediately after leaving the plaintiff's house . . ." (id. at 10);

(d) "Counsel was ineffective for failing to move for a mistrial when petitioner advised him and the court that a juror was sleeping during the trial" (id.);

(e) "Counsel was ineffective for failing to object to the plea not being in writing" (id.);

(f) "Counsel was ineffective for failing to sever the theft of a firearm from the possession of a firearm" (id.); and,

(g) "Counsel was ineffective for failing to object to the entry of an order of conviction . . . that had been vacated in a prior habeas hearing" (id.).

Claim Four: "The petitioner's due process rights[³] were violated when the court failed to accept as true the factual allegations in [his habeas] petition . . . ." (Id. at 11.)

Respondent moves to dismiss the § 2254 Petition. Winslow has responded. For the reasons explained below, the Motion to Dismiss (ECF No. 10) will be GRANTED.

I. PROCEDURAL AND FACTUAL HISTORY

A grand jury charged Winslow with grand larceny of a firearm and possession of a firearm by a convicted felon. Commonwealth v. Winslow, No. CR12-543-01 & -02, at 1 (Va. Cir. Ct. Apr. 5, 2012). A jury trial commenced on August 23, 2012. The evidence presented was summarized by the Circuit Court as follows:

The Commonwealth's evidence showed Winslow spoke to Billy Bowen about buying a gun from Bowen and at 2:00 p.m. on October 11, 2011, Winslow arrived at Billy Bowen's home in Portsmouth where he resided with his girlfriend. Bowen brought out the gun, a .30-36 Mauser for which he was asking $150. Bowen identified the weapon from an old Polaroid photograph. (Tr. 47). The trunk of the car in which Winslow arrived was opened, and the gun was examined in the trunk. Winslow said he was purchasing the gun for the older man who had accompanied him. (Tr. 48). While the transaction was being discussed, a bullet became lodged in the weapon and Bowen went into his home to retrieve a rod to dislodge the bullet. When he returned, Winslow, the gun and the vehicle were gone. Bowen reported the theft to the police. (Tr. 52-53).

Bowen's girlfriend of 25 years, Linda Todd, observed Bowen talking to Winslow from the front door of her home, a distance of 20 feet. (Tr. 66, 69). She observed Bowen place the gun in the trunk opened by a man accompanying Winslow. (Tr. 66-7). Winslow remained at the back of the car with the trunk open and Bowen did not carry the gun with him when he came back into the house to retrieve the rod to dislodge the bullet. (Tr. 70). When she turned to look back ouside, Winslow and the man had gotten in the car and were pulling off. (Tr. 70).

The Commonwealth introduced four prior felony conviction orders to prove the felon in possession of a firearm offense, a hit and run from Chesapeake, a grand larceny from Virginia Beach and a burglary and felony failure to appear from Virginia Beach. (Tr. 78-79).

Winslow testified he was just a passenger in the car when Jerry Evans and Winslow's sister Angie proceeded to Bowen's home so Angie could sell Bowen pills. Winslow said he was present to accommodate the sale from which he would receive money; he knew nothing about a gun. (Tr. 87, 89). Winslow had prior contacts with Bowen and Bowen and his girlfriend, Linda, knew him. (Tr. 91-92).

When Angie drove up, Bowen was at his front door with the gun. (Tr. 94). She handed Winslow the car keys and he opened the trunk. Bowen put the gun in the trunk and while demonstrating how the weapon operated to Evans who was interested in buying the gun, (Tr. 99), Winslow returned the keys to Angie. He did not see Bowen leave and assumed he took the gun with him. (Tr. 100). He and Evans got into the car and left "quick[ly]." (Tr. 100). Angie dropped off Winslow at his mother's home. (T. 101, 106).

Winslow said there was bad blood between him and Evans over a girl and that could be a motive for Evans to lie about Winslow's part in the transaction. Evans had also accused Winslow of stealing a bike. (Tr. 104). Winslow said he had had conversation with Bowen afterward, but he refused to pay Bowen $150 because he did not take the gun. (Tr. 107). However, on May 16, 2012, Winslow had his father pay Bowen for the gun with a $150 cashier's check. (Tr. 118). Winslow admitted having four prior felony convictions and 11 prior misdemeanor convictions for lying, cheating or stealing. (Tr. 119-120).

Jerry Evans testified Winslow picked him up and they went to see Bowen about a gun Bowen was trying to sell. (Tr. 138). Evans said he had been drinking, did not feel well and did not recall events clearly but got back in the car when Winslow and Bowen started negotiating price. A few minutes later, Winslow got back in the car and they left. (Tr. 139, 143-44). He did not recall any pills being involved in the transaction and there was no girl in the car. (Tr. 141, 144).

The defense called Mona Wekheiser who testified she was living with Jerry Evans when he said he received $100 for a firearm he sold and he split the money with Angie, because she drove the car; he had dropped off Winslow beforehand and Winslow took no part in the deal. (Tr. 151, 155). She said there was bad blood between Evans and Winslow. (Tr. 152).

James Ennis, an investigator for the defense testified he spoke with Jerry Evans who said he knew nothing about a rifle, he was not there and had nothing to do with it. (Tr. 159).

At this point in the case, defense counsel conferred with Winslow and then Winslow asked to speak with his counsel and the Commonwealth's Attorney for the purpose of negotiating a plea.

Winslow v. Clark, No. CL14-1630, at 4-7 (Va. Cir. Ct. July 10, 2014).

The parties reached an oral agreement that Winslow would plead guilty to both charges with "five years with three and a half years suspended on the grand larceny [and] five years on the firearm charge with three years suspended for a total of three and a half years to serve." (Aug. 23, 2012 Tr. 162-63). The prosecutor indicated that he would need to write up a plea agreement, and the Circuit Court stated that "[y]ou don't need to write it up." (Aug. 23, 2012 Tr. 162.) The Circuit Court conducted an extensive plea colloquy with Winslow to confirm that he understood the agreement and was entering into the plea freely, knowingly, and voluntarily. (Aug. 23, 2012 Tr. 162-76.) In accordance with the plea agreement, Winslow was sentenced toan active sentence of three years and six months of incarceration. Commonwealth v. Winslow, CR12-543-01 & -02, at 1 (Va. Cir. Ct. Aug. 27, 2012).

On appeal, Winslow argued "that the trial court's acceptance of his guilty plea violated [Supreme Court of Virginia] Rule 3A:8(c)(2)'s requirement that the plea agreement 'be reduced to writing' and signed by the parties," and "rendered his convictions void ab initio." Winslow v. Commonwealth, 749 S.E.2d 563, 565 (Va. Ct. App. Nov. 12, 2013). The Court of Appeals of Virginia disagreed and affirmed Winslow's convictions. Id. The Supreme Court of Virginia refused his petition for appeal. (See § 2254 Pet. 2.)

On May 9, 2014, Winslow filed a petition for a writ of habeas corpus in the Circuit Court. Petition for Writ of Habeas Corpus 1, Winslow v. Clark, No. CL14-1630 (Va. Cir. Ct. filed May 9, 2014). In his state petition, Winslow raised, inter alia, all of the claims in his instant § 2254 Petition. By Final Order entered on July 10, 2014, the Circuit Court denied and dismissed Winslow's habeas petition. Winslow, No. CL14-1630, at 21 (Va. Cir. Ct. July 10, 2014). The Supreme Court of Virginia refused the petition for appeal. Winslow v. Clark, No. 141346, at 1 (Va. June 26, 2015).

II. CLAIM NOT COGNIZABLE IN FEDERAL HABEAS

In Claim Four, Winslow contends that his "due process rights were violated when the court failed to accept as true the factual allegations in [his habeas] petition . . . ." (§ 2254 Pet. 11.) Specifically, Winslow challenges "the substance of the Circuit Court's findings that were not supported by the record and that the state court fact-finding process itself was deficient in material ways that which would amount to an...