Brizuela v. Clarke

112 F. Supp. 3d 366, 2015 U.S. Dist. LEXIS 79355, 2015 WL 3819700
CourtDistrict Court, E.D. Virginia
DecidedJune 18, 2015
DocketCase No. 1:14cv799
StatusPublished
Cited by1 cases

This text of 112 F. Supp. 3d 366 (Brizuela v. Clarke) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brizuela v. Clarke, 112 F. Supp. 3d 366, 2015 U.S. Dist. LEXIS 79355, 2015 WL 3819700 (E.D. Va. 2015).

Opinion

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

Petitioner Abel Brizuela, a state inmate who was convicted by a jury of animate object sexual penetration in violation of Va.Code § 18.2-67.2, has filed a motion; by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on a number of claims of inéffective assistance of counsel, as well as a claim that the evidence adduced at trial was insufficieht to convict petitioner of animate object sexual penetration. Petitioner’s specific ineffective assistance of counsel claims are as follows:

(1) Counsel was ineffective after trial .for failing to report to the trial judge, and then for failing to raise on appeal, an allegation of juror misconduct;
(2) Counsel was ineffective at: trial for . failing to challenge the victim’s description of the sexual assault;
[370]*370(3) Counsel was ineffective at trial for failing to subpoena mental health records of the victim; and
(4) Counsel was ineffective at trial for ' failing to subpoena records of Internet chats between the defendant and ■the victim and records of Internet chats between the victim and other individuals.

Petitioner filed his motion on June 25, 2014, and respondent filed a Rule 5 answer and motion to dismiss on September 5, 2014. Subsequently, however, petitioner was granted leave to file a supplemental petition and petitioner, by counsel, filed a supplemental petition on November 26, 2014. On March 2, 2015, respondent filed a Rule 5 answer and a motion to dismiss the supplemental petition. As the parties have fully briefed the issues presented and neither oral argument nor an evidentiary hearing would aid the decisional process, respondent’s motion is ripe for disposition.1 For the reasons that follow, respondent’s motion to dismiss must be granted in all respects.

I.2

A brief summary of the factual and procedural history of the case places petitioner’s motion in context. Thus, the.record reflects that in 2009, the complaining witness, Catherine Whisenant, was introduced to petitioner through an online dating website called plentyoffish.com. After communicating with each other over the telephone several times, petitioner and Ms. Whisenant met in person at an Applebee’s parking lot in November 2009. Subsequent to that meeting, the two continued to communicate and in December 2009, the pair met for lunch at Applebee’s. Thereafter, petitioner and Ms. Whisenant continued to speak on the phone and communicate through the plentyoffish.com website. Some of their conversations were sexual in nature.

On January 11, 2010, petitioner and Ms. Whisenant went on a date to Salsa’s Restaurant, where they spent approximately three hours. During, the date, Ms. Whi-senant consumed two jumbo margaritas and began to get an “uneasy feeling” about petitioner. This unease • apparently stemmed from the fact that petitioner represented online that he was 44 years old, when in fact he was 49 years old. Nevertheless, when the date ended; Ms. Whisen-ant held hands with petitioner as he drove her back to her house.

When the pair arrived at Ms. Whisen-ant’s home, she invited him inside. During this time, Ms. Whisenant’s son was sleeping upstairs. Petitioner and Ms. Whisen-ant stood in the kitchen for about twenty minutes smoking cigarettes and talking. While in the kitchen, they had their arms around each other and kissed. Subsequently, Ms. Whisenant thanked petitioner for taking her out, told him she had a nice time, and then informed him that it was getting late and that she had to work the next day. It was at this point that petitioner began to make sexual advances towards Ms. Whisenant. She testified that “[a]t one point he grabbed my right hand, so I 'had a cigarette in my left hand. He brought it around behind me, because he was standing behind me and placed it, my hand, on top of his pants.” Ms. Whisenant immediately grabbed her hand back but did not say anything further. In response [371]*371to petitioner’s continued sexual advances, Ms. Whisenant reiterated that she ‘hvasn’t ready” and needed to go to work the next day. Ms. Whisenant further testified that petitioner told her “I know you like me and I like you, so why fight it”.and that she “might as well just go ahead and let it happen.” According to Ms. Whisenant, petitioner eventually threw her against the wall in her kitchen, immobilizing her. He then fondled Ms. Whisenant’s breasts, put his hand down her pants, and put his fingers inside her vagina. During this time, Ms. Whisenant testified that she was unable to resist because petitioner was “taller,” “bigger,” and “had me pinned. I could not move.”

Petitioner then said “lets go upstairs” to which Ms. Whisenant responded, “no, my son is asleep.” Ms. Whisenant testified that she did not cry out or fight petitioner because she feared that, her son, who had mental and emotional difficulties, would wake up and would be “devastated” by the situation. She further testified that she was scared that petitioner would severely hurt her if she resisted. Thus, the pair went to the couch in the living room with petitioner’s hand on Ms. Whisenant’s neck and Ms. Whisenant disrobed. Petitioner then performed oral sex on Ms. Whisen-ant, and the two had sexual intercourse. Afterwards, the pair went back into the kitchen and smoked a cigarette.

Once petitioner left, Ms. Whisenant took a shower, washed "her clothes, and called petitioner on his cell phone; according to Ms. Whisenant, the reason for the call was to ensure that he did not remain in the vicinity of her home. Two days later, Ms. Whisenant told her friend, Marrot Blake, about the incident. According to Ms. Whi-senant, petitioner had left-numerous phone messages demanding that she meet him, and-Ms. Whisenant,was fearful for both her and her son’s lives. The next day, Ms. Whisenant went to -, stay with another friend, Kim Hopkins, and told her about the incident. With Hopkins’, encouragement,- Ms.i Whisenant called the police and reported the incident. On January 14, 2010, Ms. Whisenant was examined by a forensic nurse at Riverside Regional Medical Center. ' The nurse found redness in Ms. Whisenant’s genital area that was consistent with sexual intercourse. The nurse further testified that a visual inspection of Ms. Whisenant’s body did not reveal any abrasions, bruises, marks, or scratches on her back.,.

On or about May 17, 2010, a Grand Jury for the Matthews County Circuit Court charged petitioner with one count of committing rape by sexual intercourse accomplished through force, threat,, or intimidation; one count of .committing forcible sodomy by engaging in oral sex accomplished by force, threat, or intimidation; and one count of committing.animate object sexual penetration accomplished by force, threat, or intimidation,-in violation of Va.Code § 18.2-67.2. On March 9, 2011, a ■jury acquitted,petitioner on the first two charges, but found petitioner guilty of the third count — animate object sexual penetration. On June 22, 2011, petitioner was ■ sentenced to five years’ imprisonment for this offense.

Thereafter, petitioner .appealed his conviction, arguing that the evidence adduced at trial was insufficient to support his conviction of animate object sexual penetration. A three-judge panel of the Court of Appeals of Virginia denied this appeal on December 21, 2011.

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Bluebook (online)
112 F. Supp. 3d 366, 2015 U.S. Dist. LEXIS 79355, 2015 WL 3819700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brizuela-v-clarke-vaed-2015.