NORMAN K. MOON, Senior District Judge.
Roger James Givens, 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 Campbell County Circuit Court (dkt. 1). Respondent filed a motion to dismiss Givens' § 2254 petition (dkt. 10), and Givens responded (dkt. 15), making the matter ripe for disposition. After review of the record, I will grant the motion to dismiss.
On December 27, 2013, the Campbell County Circuit Court entered a final order convicting Givens, pursuant to an Alford plea, of object sexual penetration.
At Givens' plea hearing, the Commonwealth proffered that the evidence at trial would have demonstrated that:
Guilty Plea Hr'g Tr. at 11-15 (Dec. 17, 2015).
At this point in the hearing, the Commonwealth asked if the defense would stipulate to the element of intimidation. Defense counsel refused, but conceded that the Commonwealth had established that Givens had beaten the victim and that a single beating could satisfy intimidation. Id. at 15-16. The Commonwealth continued the proffer:
Id. at 17-18. The court accepted the Alford plea, concluding that "a strong factual basis" supported the charge and that Givens entered the plea freely and voluntarily. Id. at 25, 33. Givens' direct appeal and subsequent state court habeas petition proved unsuccessful.
On December 14, 2017, Givens filed the present petition, alleging the following grounds:
(Dkt. 1.) Respondent acknowledges that Givens' petition is both exhausted and timely, and I conclude that no claims are procedurally barred from federal habeas review.
To obtain federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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, a federal court may not grant a writ of habeas corpus based on any claim that a state court decided on the merits unless that adjudication:
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 `fairminded jurists' could disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To state a constitutional claim for ineffective assistance of counsel, a petitioner must satisfy the two-pronged Strickland v. Washington test by showing (1) "that counsel's performance was deficient," and (2) "that the deficient performance prejudiced the defense." 466 U.S. 668, 686-87 (1984). "Judicial scrutiny of counsel's performance must be highly deferential," and counsel is "permitted to set priorities, determine trial strategy, and press those claims with the greatest chances of success." Id. at 689; United States v. Mason, 774 F.3d 824, 828 (4th Cir. 2014).
For Strickland's first prong, a petitioner must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687-88. "The question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." Richter, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). For the second prong, a petitioner must show that, but for counsel's alleged unprofessional error, there is a "reasonable probability that . . . the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine the confidence of the outcome." Id. For a petitioner that pleaded guilty, even if he establishes counsel's performance was deficient, relief is still unavailable unless "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Furthermore, the Fourth Circuit has generally instructed district courts to dismiss habeas petitions that contradict the plea colloquy. See United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) ("[I]n the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements."); Fields v. Att'y Gen. of State of Md., 956 F.2d 1290, 1299 (4th Cir. 1992) (28 U.S.C. § 2254 petition for writ of habeas corpus) ("Absent clear and convincing evidence to the contrary, a defendant is bound by the representations he makes under oath during a plea colloquy.").
In Claim 1, Givens asserts that counsel failed to inform him of the consequences of his Alford plea. Specifically, Givens alleges that counsel failed to advise him that his Alford plea precluded any direct appeal, including the ability to challenge the sufficiency of the evidence. Givens argues the following: (a) he did not give up his right to appeal his conviction in either the written plea agreement or his plea colloquy; (b) his plea was not a "traditional" Alford plea because defense counsel refused to stipulate to intimidation and engaged in a spirited debate regarding the Commonwealth's proffer; (c) the twenty-five year sentence was essentially a life sentence; and (d) he was "not quite himself at the plea hearing." Pet. at 10, Dkt. 1.
On habeas review, the state circuit court rejected Claim 1 pursuant to Anderson v. Warden of Powhatan Corr. Ctr., 281 S.E.2d 885 (Va. 1981), which holds that a defendant's representations at the plea colloquy regarding the validity of his plea and effectiveness of his attorney are generally binding on collateral review. Specifically, the court determined:
Givens v. Clarke, No. CL16-1071-00, slip op. at 7-9 (Campbell Cnty. Cir. Ct. Oct. 11, 2016) (internal citations and footnote removed), Dkt. 17-4.
I agree with the state circuit court's analysis. Although Anderson is not directly applicable in federal court, similar rules apply. See Lemaster, 403 F.3d at 221-22; Fields, 956 F.2d at 1299. To collaterally attack a guilty plea, a petitioner must establish either that (1) counsel's performance was deficient and that, but for counsel's alleged errors, he would not have pleaded guilty; or (2) the plea itself was not voluntary or intelligent. United States v. Broce, 488 U.S. 563, 574 (1989). Givens fails to establish either.
For arguments (a) through (c), even if counsel's performance was deficient, Givens has not demonstrated prejudice. First, Givens' potential defenses are not compelling. He asserts that he was a respected community leader, the relationship was consensual, the victim lied, and the victim's mother facilitated the relationship. The record establishes that Givens was well aware of these arguments when he pleaded guilty—they are identical to the hypothetical defenses that counsel proffered at his guilty plea hearing. Givens entered the Alford plea and sat in silence while counsel raised these defenses but ultimately admitted that, given the trial court's evidentiary rulings and the potential life sentences, she had advised Givens that "it would be in his best interest to subject himself to the Alford plea." Guilty Plea Hr'g Tr. 24. Second, the trial court nolle prossed other charges in exchange for Givens' plea. If he had rejected the plea, Givens would have faced multiple charges with a potential punishment of multiple life sentences. The additional charges were nolle prossed in exchange for his Alford plea. Therefore, Givens fails to demonstrate that, but for counsel's alleged errors, there is a reasonable likelihood that he would not have pleaded guilty and he would have proceeded to trial. See Broce, 488 U.S. at 574.
Separately, as to arguments (b) and (c), Givens fails to establish deficient performance. In argument (b), Givens avers that his plea was not a "traditional" Alford plea, because counsel refused to stipulate to intimidation and counter-proffered impeachment of the victim's account of events. Givens also alleges that he was confused by counsel's actions and that significant evidence undermined the credibility of the victim. However, counsel's arguments did not undermine the validity of the plea or elevate it beyond an admission of guilt, because Alford pleas are essentially equivalent to traditional guilty pleas. See Price v. Johnson, 218 F. App'x 274, 275 (4th Cir. 2011) (conviction based on an Alford plea did not alter petitioner's substantial rights compared to a traditional guilty plea); Perry v. Commonwealth, 533 S.E.2d 651, 652-53 (Va. App. 2000) (Alford plea treated same as a guilty plea). The distinguishing feature of an Alford plea is that the defendant does not confirm the factual basis underlying his plea. United States v. King, 673 F.3d 274, 281 (4th Cir. 2012).
Givens' assertion that his sentence was essentially a life sentence (argument (c)) is unconvincing. Givens was forty-seven at the time of his conviction, and the court sentenced him to twenty-five years' imprisonment. Therefore, he has a real opportunity to leave prison alive at seventy-two years old. See United States v. Johnson, 685 F.3d 660, 663 (8th Cir. 2012) (78-month sentence for seventy-year defendant old not a de facto life sentence).
For argument (d), that he was "not quite himself at the plea hearing," Givens does not appear to raise an ineffective assistance of counsel claim. Instead, he challenged his plea as involuntary, because he asserts that he failed to understand the plea agreement on account of being "outside of himself" at the hearing after "spending a year in jail and being accused of such a heinous crime." Pet. at 11.
"The test for determining competency is whether [a defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and whether he has a rational as well as a factual understanding of the proceedings against him." United States v. General, 278 F.3d 389, 395-96 (4th Cir. 2002) (internal citations omitted). General anxiety, stress, and time pressure do not invalidate guilty pleas. See, e.g., Miles v. Dorsey, 61 F.3d 1459, 1470-71 (10th Cir. 1995) ("Although deadlines, mental anguish, depression, and stress are inevitable hallmarks of pretrial plea discussions, such factors considered individually or in aggregate do not establish that Petitioner's plea was involuntary."); United States v. Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989) (holding that "[c]riminal prosecutions are stressful experiences for nearly all concerned," and the petitioner's "agitated emotional state" did not invalidate his guilty plea).
Givens argues that his statements during the plea colloquy demonstrated that his plea was involuntary: he incorrectly told the court that he was forty-eight years old when he was actually forty-seven, and he initially asserted that he only understood the plea agreement "[f]or the most part." Guilty Plea Hr'g 5, 9. However, Givens has not alleged that his incorrect statement resulted from anything but general anxiety and stress. See Miles, 61 F.3d at 1470-71. Moreover, after Givens' stated "[f]or the most part," the court requested clarification on whether he understood. Givens replied "Yes, absolutely." Guilty Plea Hr'g 9. Givens further confirmed both his understanding of the plea agreement and his voluntariness to enter it. He informed the court he was not under the influence of drugs, medication, or alcohol; he had not been threatened; he had no physical impairment preventing his understanding of the agreement; he understood all of the court's questions; and he was satisfied with the performance of counsel. Id. at 9-10. Therefore, he fails to establish that his plea was involuntary.
Accordingly, the state court's application of Anderson was not contrary to, or an unreasonable interpretation of, federal law, or an unreasonable determination of the facts, and I will grant the motion to dismiss as to Claim 1.
In Claim 2, Givens asserts that counsel was ineffective for: (a) failing to interview and prepare witnesses for trial; (b) failing to prepare an affirmative defense regarding intimidation, (c) failing to record a phone hearing that "contributed" to the denial of a motion for speedy trial and a motion to dismiss the enhanced indictment; and (d) failing to request a hearing on the victim's sexual history. Givens also appears to allege two new claims: counsel was ineffective for (e) rarely visiting or communicating with Givens, and (f) being investigated by the Virginia State Bar related to other cases.
At the threshold, Givens fails to satisfy the requirements of Lemaster or establish prejudice. On habeas review, the circuit court held:
Givens v. Clarke, No. CL16-1071-00, slip op. at 12-13 (citations removed). I agree with the state circuit court's analysis. Givens has not presented a valid reason why he should not be bound by his statements at the plea colloquy; therefore, the state court's determination that review of Claim 2 was barred by Anderson was not unreasonable. Nevertheless, I will review the merits of his claims.
On habeas review, the state circuit court rejected Claim 2 arguments (a) and (b):
Givens v. Clarke, No. CL16-1071-00, slip op. at 10. I agree with the state circuit court's analysis. Givens' knowing and voluntary guilty plea waived all nonjurisdictional defects in the proceedings, including claims of ineffective assistance that do not relate to the voluntariness of the plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Stiger, 20 F. App'x 307, 308-09 (6th Cir. 2001); United States v. Lynch, 991 F.2d 792 (Table), 1993 WL 128525, at *1 n. (4th Cir. 1993) (noting a valid guilty plea waives all nonjurisdictional defects based on Tollett and United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992)).
Despite Givens waiving these ineffective assistance claims under Tollett, the state court reviewed the merits of Claim 2 arguments (a) and (b):
Givens v. Clarke, No. CL16-1071-00, slip op. at 10-11. I agree with the state circuit court's analysis. Although it is generally difficult to definitively determine if counsel's preparation of defenses and witnesses for trial was constitutionally deficient when a defendant pleads guilty and waives his right to a trial, counsel's extensive counter-proffer at Givens' guilty plea hearing and her explanation of her potential trial strategy clearly demonstrates that counsel had prepared valid defenses and witnesses.
First, to the extent that Givens alleges that counsel failed to prepare him as a witness, his claim fails because he has not proffered what his personal testimony would have been. See Beaver, 93 F.3d at 1195; Nickerson v. Lee, 971 F.2d 1125, 1135 (4th Cir. 1992) (habeas petitioner must present evidence supporting his claims or point to evidence in the record), abrogated on other grounds by Gray v. Netherland, 518 U.S. 152, 165-66 (1996).
Second, Givens has not established that counsel failed to prepare defenses and other witnesses. Counsel refused to stipulate as to intimidation, introduced the defense of a prior sexual relationship, and informed the court, at length, of her probable trial strategy. See Plea Hr'g Tr. 20-24. After hearing her argument, the court asked counsel whether she believed it was in Givens' best interests to enter the Alford plea. Counsel replied:
Id. at 24-25. Considering counsel's extensive counter-proffer and her demonstrated understanding of Givens' case, arguments (a) and (b) are unavailing.
The circuit court also denied argument (c):
Givens v. Clarke, No. CL16-1071-00, slip op. at 12 (citations removed). I agree with the state circuit court's analysis. Givens' allegations are conclusory because they lack any factual support, including: hearing dates, how recording the phone hearing would have resulted in a different outcome, and the merits of the motions. Therefore, argument (c) is without merit. See Nickerson, 971 F.2d at 1135.
As for argument (d), the state habeas court held:
Givens v. Clarke, No. CL16-1071-00, slip op. at 12 (citation removed). I agree with the state circuit court's analysis. Argument (d) is unavailing because Givens has not proffered what, if any, evidence he would have presented. See Beaver, 93 F.3d at 1195.
For argument (e), Givens fails to show that counsel was ineffective because he admits that counsel met with and communicated with him, and "there is no established `minimum number of meetings between counsel and client prior to trial necessary to prepare an attorney to provide effective assistance of counsel.'" Moody v. Polk, 408 F.3d 141, 148 (4th Cir. 2005) (quoting United States v. Olson, 846 F.2d 1103, 1108 (7th Cir. 1988)). During his plea colloquy, Givens told the court, under-oath, that he was satisfied with counsel's services, and counsel candidly discussed her interpretation of the case and the advice she offered to Givens. Furthermore, Givens fails to present evidence showing a reasonable probability that, if counsel had met and communicated with him more often, he would not have pleaded guilty and would have proceeded to trial. Therefore, argument (e) is without merit.
For argument (f), although the Virginia State Bar later investigated and/or disciplined defense counsel for missing hearings and misappropriation of client funds, counsel's actions in other cases have little, if any, relevance to her actions in Givens' proceedings. A petitioner must present evidence, or point to evidence in the record, of counsel's ineffectiveness directly related to his case; Givens fails to do so. See Nickerson, 971 F.2d at 1135. Therefore, argument (f) is without merit. Accordingly, I will grant the motion to dismiss as to Claim 2.
In Claim 3, Givens asserts that counsel was ineffective because she coerced him into pleading guilty on the night before trial was scheduled to start. He alleges that he felt like defense counsel and the Commonwealth's Attorney worked together to coerce him into pleading guilty, that they rushed him into the plea, and that he lied when he told the court that he was satisfied with the services of defense counsel. On habeas review, the circuit court rejected the claim:
Givens v. Clarke, No. CL16-1071-00, slip op. at 13 (citations and footnote omitted). I agree with the state circuit court's analysis.
A coerced guilty plea is not valid; a guilty plea "must be an intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." McMann v. Richardson, 397 U.S. 759, 766 (1970) (internal quotation marks and citations omitted). At his plea hearing, Givens told the circuit court that he understood the following: the charge against him, the plea agreement's terms, all of the court's questions, the potential punishment, and that he waived several rights. Guilty Plea Hr'g Tr. 7-10. He confirmed to the court that he had enough time to discuss the Alford plea, the plea agreement, and possible defenses with counsel. Id. Furthermore, he stated that he was not under the influence of any drugs, had not been threatened or forced to enter the Alford plea, did not have any mental or physical impairment, and he decided for himself, freely and voluntarily, to enter the Alford plea. Id. The state trial court then accepted Givens' plea and found it to be freely and voluntarily entered.
Givens' conclusory allegations fail to show coercion or that "extraordinary circumstances" invalidate his guilty plea. See McMann, 397 U.S. at 767; Lemaster, 403 F.3d at 221. Givens also fails to undermine the validity of his guilty plea by otherwise establishing that counsel was ineffective. See Broce, 488 U.S. at 574. Therefore, the state court's determination that Givens was bound by the representations he made under oath during his plea colloquy pursuant to Anderson was not contrary to, or an unreasonable interpretation of federal law, or an unreasonable determination of the facts, and I will grant the motion to dismiss as to Claim 3.
In Claim 4, Givens alleges he was denied due process, asserting that the evidence was insufficient because it would not have shown the "force, threat, or intimidation" element under Va. Code § 18.2-67.2.
On direct appeal, the state court refused review of the sufficiency argument pursuant to Perry v. Commonwealth, 533 S.E.2d 651 (2000). Givens v. Commonwealth, No. 135-14-3, slip op. at 2 (Va. Ct. App. Sept. 23, 2014), Dkt. 17-3. In Perry, the Court of Appeals of Virginia determined that an Alford plea, like a traditional guilty plea, waives the defendant's right to appeal the sufficiency of the evidence. Perry, 533 S.E.2d at 653. The Fourth Circuit agrees: by entering an Alford plea, a Virginia criminal defendant "waive[s] his right to appeal the issue of whether the evidence was sufficient to prove beyond a reasonable doubt that he was guilty of that charge." Price v. Johnson, 218 F. App'x 274, 275 (4th Cir. 2007) (28 U.S.C. § 2254 petition) ("Price argues on appeal that there was insufficient evidence to sustain his conviction. Under Perry, regardless of whether Price entered an Alford plea or traditional guilty plea, he waived his right to challenge the sufficiency of the evidence."). Therefore, Givens' Alford plea waived his right to challenge the sufficiency of the evidence on appeal, and I conclude that the state court's determination was not contrary to, or an unreasonable interpretation of, federal law, or based on an unreasonable determination of the facts. Accordingly, I will grant the motion to dismiss as to Claim 4.
For the reasons stated, I will grant the motion to dismiss. Givens' petition is without merit. An appropriate order will enter this day.
The Clerk is directed to send copies of this memorandum opinion and accompanying order to the petitioner and to counsel of record for Respondent. Further, concluding that the petitioner has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(1), a certificate of appealability will be denied.
