Brizuela v. Clarke
Brizuela v. Clarke
Opinion of the Court
MEMORANDUM OPINION
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 (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.
I.
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
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.
Two days later, on June 14, 2014, petitioner filed his original § -2254 motion in this Court.
II.
When a state court has addressed the merits of a claim raised in a federal habeas petition, a federal court may not grant the petition based on the claim unless the state court’s adjudication is contrary to, or is based on an unreasonable application of, clearly established federal law, or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is (i) “contrary to” or (ii) “an unreasonable application of’ federal law is based on an independent review of each standard. See Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
A state court determination runs afoul of the “contrary to” standard if it “arrives at a conclusion opposite to that reached by [the United States Supreme]
III.
As the Supreme Court of Virginia correctly recognized, the merits of petitioner’s claims of ineffective assistance of counsel are governed by the settled and familiar two-pronged legal analysis set forth in Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, to prevail oh a claim of ineffective assistance of counsel, petitioner must show first, that counsel’s performance “fell below an' objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Importantly, judicial review of counsel’s performance in this context is “highly deferential,” Id. at 689, 104 S.Ct. 2052. Indeed, to establish that counsel’s performance was objectively unreasonable, petitioner must overcome a strong presumption that counsel rendered “adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. If petitioner demonstrates that counsel’s performance was objectively unreasonable, Strickland next requires petitioner to establish that “the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. Thus, in step two of the Strickland analysis, petitioner must demonstrate “that- there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. The prejudice analysis also requires consideration of whether “the result of the proceeding was fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). In other w’ords, counsel may be deemed constitutionally ineffective only if his or her “conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Therefore, the focus of
IV.
Petitioner first challenges the standard of review applicable to his first, third, and fourth claims of ineffective assistance of counsel, arguing that de novo review should displace the otherwise deferential § 2254 standard of review for these claims. Petitioner’s contention is premised on two distinct arguments: (i) petitioner’s ineffective assistance of counsel claims were procedurally defaulted in the state habeas proceedings below, and thus, de novo review is warranted; and (ii) the Supreme Court of Virginia’s decision was based on an incomplete record, thereby depriving its decision of the normal deference afforded to such decisions in the adjudication of § 2254 motions. Neither argument has merit.
Petitioner’s first argument relies on the Supreme Court’s decision in Martinez v. Ryan, - U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). In Martinet, the Supreme Court held that when an ineffective assistance of counsel claim could only be raised for the first time at initial-review collateral proceedings, then the failure to raise these claims in initial-review collateral proceedings “may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 1315. Critically, however, a showing must-be -made of “cause and prejudice” arising from the procedural default; only then can a federal court “consider the merits of a claim, that, otherwise would have been procedurally defaulted.” Id. at 1320. It is settled that Virginia “requires prisoners to bring ineffeetive-assistance-of-trial-counsel claims, for the first time, in state; collateral proceedings.” Gray v. Pearson, 526 Fed.Appx. 331, 334 (4th Cir. 2013). Thus, petitioner contends that his first, third, and fourth ineffective assistance claims were procedurally defaulted below, and as such, Martinez requires application, here of a more rigorous standard of review as to these claims.
This argument fails; petitioner overlooks a critical and necessary fact for his Martinez claim: there was no procedural default below. Indeed, it is uncon-troverted that petitioner raised, on the merits, dll four of his ineffective assistance of counsel claims in the state habeas proceedings below. By contrast, the Supreme Court is clear that the rule in Martinez is applicable only to those limited circumstances where a procedural'default occurs. For example, in Martinez, the petitioner “did not respond” in his initial collateral proceedings, which formed the basis for his procedural default. Martinez, 132 S.Ct. at 1314. And in Trevino v. Thaler, - U.S. -, 133 S.Ct. 1911, 1917, 185 L.Ed.2d 1044 (2013), the Supreme Court further elucidated the circumstances constituting a procedural default, noting that Such a default occurs when, “for example, thé defendant ] fail[s] to raise a claim of error at'the time or in the place that state law requires.” These circumstances are far afield from the' present case, where petitioner raised all four of his ineffective Assistance counsel claims "in the proper time and place. More importantly, the Supreme Court of Virginia considered, and rejected, all four claims on their merits.
Petitioner argues that the Supreme Court of Virginia’s holdings that petitioner failed to “proffer” sufficient ev-
Petitioner’s second argument fares no better. Petitioner relies on Winston v. Kelly (“Winston I”), 592 F.3d 535 (4th Cir. 2010) and Winston v. Pearson (“Winston II”), 683 F.3d 489 (4th Cir. 2012) to argue that the Supreme Court of Virginia adjudicated petitioner’s habeas petition on an inadequate factual record. In Winston I, the Fourth Circuit held that if a record
ultimately proves to be incomplete, deference to the state court’s judgment would be inappropriate because judgment on a materially incomplete.record is not an adjudication on the merits for purposes of § 2254(d) ... New, material evidence, introduced for the first during federal habeas proceedings, may therefore require a de novo review of .petitioner’s claim. .
Winston I, 592 F.3d at 555-56. Thus, in Winston I, the Fourth Circuit concluded that the state court' had not adjudicated the relevant claim at issue on .the merits for purposes of § 2254(d) because the state court ignored “new, material evidence that the state court could have considered had it permitted further development of the facts....” Id. at 555. Winston II but-, tressed the ruling in Winston I, by holding that an adjudication on the merits for purposes of § 2254(d) does not occur when a petitioner is hindered from “producing critical evidence ... by the state court’s unreasonable denial of discovery and an evidentiary hearing.” Winston II, 683 F.3d at 501.
Both Winston I and Winston II are inapposite to this case, as petitioner has failed to identify a single piece of material evidence that the Supreme Court of Virginia failed to consider. Indeed, petitioner’s supplemental petition and response brief are devoid of the pieces of evidence that were missing from the record in the state habeas proceedings below, and how such evidence would have been material. Petitioner’s argument instead seems to.be that the Supreme Court of Virginia should have gone out of its way-to ask petitioner if he wanted to conduct discovery.. Neither Supreme Court nor Fourth Circuit precedent has crafted, such an expansive right. See Waters v. Clarke, No. 2:11cv630, 2012 WL 4498914 at *8 (E.D.Va., Sept. 28, 2012) (“Although [petitioner requested discovery in state court, his properly advanced evidence - failed to demonstrate the need for discovery. Therefore, this Court, cannot . interpret the individualized analysis made by the Supreme Court of Virginia as anything other than an ‘adjudication on the merits.’ ”).
In sum, petitioner’s contention that de novo review applies to his first, third,' and fourth ineffective assistance of counsel claims must be rejected, and, as such, the regular § 2254 standard of review outlined in Part II, supra, applies to all of petitioner’s claims. It remains to now to analyze each claim using this standard of review.
V.
A.
Petitioner’s first ineffective assistance of counsel claim is that his trial counsel was ineffective for failing to investigate and raise a potential claim of juror misconduct arising from statements from a juror who indicated after petitioner’s trial that he or she was “not comfortable with how deliberations took place.”- As to this claim, the Supreme Court of Virginia found that petitioner was unable to satisfy either the Strickland performance or prejudice prong. With respect to the performance prong, the Supreme Court of Virginia found that once trial counsel was contacted by'the attorhey'who represented the unidentified juror, trial counsel investigated the matter and determined there was no legitimate issue to raise because trial counsel learned that “the juror did not have an issue with the deliberations and stood by the verdict and sentence.”
On this record, the Supreme Court of Virginia’s conclusion was certainly not an unreasonable application of Strickland. Indeed, it is well-settled that “an allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced.” Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996); see also Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990) (petitioner must allege “what an adequate investigation would have revealed”). Petitioner has made no such proffer in this case, and has presented no evidence either that his trial counsel failed adequately to investigate the potential for juror misconduct — which the Supreme Court of Virginia concluded that trial counsel did — or that there was a reasonable probability that the result of the proceeding would have been different had trial counsel raised this issue either at trial or on appeal. Indeed, given the juror’s statement standing by both the-verdict and the sentence imposed, it is clear that petitioner cannot prevail on the Strickland prejudice prong.
In sum, petitioner’s first claim of ineffective assistance of counsel must be rejected,
B.
Petitioner’s second ineffective assistance of counsel claim is that trial counsel failed to challenge Ms. Whisen-ant’s trial testimony adequately in light of his assertion that it would have been physically impossible for him to have held her against a wall while simultaneously sexually assaulting her. Here again, the Supreme Court of Virginia found that petitioner failed to satisfy both Strickland prongs. Specifically, regarding trial counsel’s performance, the Supreme Court of Virginia found that the trial transcript “demonstrates counsel could have reasonably determined he had no basis to challenge the victim’s testimony as asserted by petitioner.”
Once again, the Supreme Court of Virginia’s conclusion was not an unreasonable - application of Strickland. Indeed, “[strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Mirzayance, 556 U.S. at 124, 129 S.Ct. 1411 (internal, quotation marks and citations omitted). This is so because it is “all too easy to second guess -counsel’s efforts after they have proven unsuccessful.” Meyer v. Branker, 506 F.3d 358, 371 (4th Cir. 2007) (internal quotation marks and citations omitted). In petitioner’s case, trial counsel made a strategic decision not to cross-examine the victim regarding the alleged physical impossibility petitioner alleges; such a choice , not only had a basis in the record, according to the Supreme -Court of Virginia,
C.
Petitioner’s third claim of ineffective assistance of counsel is that trial counsel was ineffective for failing to subpoena Ms. Whisenant’s mental health records. In this regard, petitioner argues that these records became “fair game” when the prosecution introduced a page from Ms.
These conclusions are clearly not an unreasonable application of Strickland. As the Fourth Circuit has noted, although “there are times that a failure to investigate impeachment evidence can satisfy the prejudice prong, that is less.likely to be the case than a failure to investigate direct evidence.” United States v. Mason, 552 Fed.Appx. 235, 239 (4th Cir. 2014). Indeed, this is especially true where, as in Mason, trial counsel “vigorously questioned” Ms. Whisenant regarding the “details of [her] account — ” Id. In other words, petitioner’s claim is “further weakened by counsel’s cross-examination of the witness at trial.” Id.
D.
Petitioner’s final ineffective assistance of counsel claim is that trial counsel was ineffective by failing to subpoena records from the dating website, plentyoffish.com. Petitioner’s argument is that these records would have established that Ms. Whisenant met another man on the website before she met petitioner and that this fact would have contradicted Ms. Whi-senant’s testimony that petitioner was the only man she had met or communicated with on the website. The Supreme Court
Once again, the Supreme Court of Virginia’s application of Strickland with respect to this claim was certainly not unreasonable. This ineffective assistance of counsel claim, like the previous claim, relates to the choices and tactics trial counsel chose to employ iii attempting to impeách Ms. Whisenant’s credibility. As already noted, demonstrating prejudice for such a claim is extremely difficult; especially considering that trial counsel thoroughly cross-examined Ms. Whisenant’s testimony. Petitioner has' not submitted or attached the relevant Internet records; as such, it is impossible' to tell whether the Internet records would have contradicted or corroborated Ms. Whisenant’s account. Petitioner also attaches importance to the fact that Ms. Whisenarit’s account remained active after the incident despite her testimony that she “shut everything down after everything had happened.”
In any event, petitioner clearly cannot satisfy the Strickland prejudice prong, as he has not and cannot show that trial counsel’s failure to subpoena these records so impaired his cross-examination of Ms. Whisenánt such that there is a reasonable probability that the result of the proceeding would have been different. In sum, as with petitioner’s previous ineffective assistance of counsel claim, trial counsel’s' strategic choices in cross-examining Ms. Whisenant were not objectively unreasonable, and the Supreme Court of Virginia’s conclusion to that effect was not an objectively unreasonable application of Strickland.
VI.
Petitioner’s final claim — that the evidence adduced at "trial'was insufficient for a jury to’ have convicted him of object sexual penetration — is asserted only in his supplement to his § 2254 motion.' As such, respondent contends that this claim is time-barred and must be dismissed without considering the merits of this claim. According to respondent, petitioner’s claim is time-barred because from December 24, 2012, the date petitioner’s conviction became final, until September 23, 2013, the date petitioner filed his átate habeas petition, 273 days passed. And "although petitioner’s claim was tolled' during the pen-dency of state habeas proceedings — from September 23, 2013 until June 12, 2014— an additional 167 days passed until November 26, 2014 when petitioner raised his insufficiency of the evidence claim in his supplement to his § 2254 motion. Thus, when these totals are combined, a total of 440 days elapsed before petitioner raised this claim, which , is 75 days beyond the one-year time limit established in 28 U.S.C. § 2244(d), which states:
*380 A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from ... the date on which the judgment became final by the conclusion of direct review ... The time, during which a properly filed application for a State post-eonviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
In response, petitioner makes two arguments as to why his insufficiency of the evidence claim is timely: (i) that this claim relates back to timely-filed claims in his original petition; and (ii) in any event, equitable tolling precludes barring this claim based on the applicable statute of limitations. These arguments arc now addressed.
In Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005), the Supreme Court held that an “amended habeas petition ... does not relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.”. Id. (emphasis added). The Supreme Court reached. this result based in large measure on the language in Rule 15(c)(2), Fed.R.Civ.P., which provides that pleading amendments relate back to the date of the original pleading “when the claim asserted in the amended plea[ding] arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Id. at 656, 125 S.Ct. 2562 (internal' quotation marks and citations omitted). Thus, in Mayle, the Supreme Court found that claims arising out of “pretrial statements” did not relate back to claims asserted in the original habeas petition, which related to statements made during and after trial, because the pretrial statements- “were separated in time and type” and thus “would not relate back under the definition of ‘conduct, transaction, or occurrence’ to which most Circuits adhere.” Id. at 657, 125 S.Ct. 2562. Ultimately, according to the Supreme Court, “relation back depends on the existence of a common core of operative facts uniting the original and newly asserted claims.” Id. at 659, 125 S.Ct. 2562 (internal quotation marks and citations omitted). See also Gray v. Branker, 529 F.3d 220, 241 (4th Cir. 2008) (relation back was not warranted when newly-asserted claim arose “from an entirely separate factual circumstance and create[d] .a new and distinct claim for relief’).
The standard, articulated in Mayle is admittedly imprecise, as there is no clear definition as to what constitutes a “common core of operative facts.” Respondent argues that petitioner’s insufficiency of the evidence claim is a much broader claim than any, of his narrower ineffective assistance- of counsel claims because it attacks the evidence as a whole, instead of a singular attorney error, and thus is predicated on a “new and distinct claim for relief.” Gray, 529 F.3d at 241. In response, petitioner argues that his insufficiency of the evidence claim shares a “common core of operative facts” with his ineffective assistance of counsel claims and more specifically, his ineffective assistance of counsel claim arising out of trial counsel’s error in failing to thoroughly cross-examine Ms. Whisenant’s version of how the sexual assault took place. Petitioner argues that had trial counsel cross-examined Ms. Whi-sénant in the manner suggested by petitioner, this would have demonstrated the overall insufficiency of the evidence to convict him. Moreover, petitioner contends that these two claims are not separated in “time and type” as they both arise out of alleged errors that occurred during trial. Mayle, 545 U.S. at 650, 125 S.Ct. 2562.
The Supreme Court recently has made clear just how much, latitude federal courts must afford to jury verdicts in reviewing insufficiency of the evidence claims. In Cavazos v. Smith, - U.S. -, 132 S.Ct. 2, 3, 181 L.Ed.2d 311 (2011), the Supreme Court held that a “reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Moreover, a
federal court may not overturn, a state court decision rejecting a ^sufficiency of the evidence challenge simply because the federal court .disagrees with the state court. ■ The federal court instead may do so only if the state court decision was objectively .unreasonable.
Id. (internal quotation marks and citations omitted). Importantly, and particularly pertinent to this case, the Supreme Court noted that “[w]hen the deference to state court decisions required by § 2254(d) is applied to the state' court’s already deferential review,” petitioners have a very heavy burden to prevail on insufficiency of the evidence claims raised in § 2254 motions. The Supreme Court reiterated these principles in Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012), noting that “[w]e have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” First,
on direct appeal, it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from the evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational 'trier of fact could have agreed with the jury.
Id. (internal quotation marks and citations omitted). Second, on habeas review, a federal court may overturn a state court decision “only if the state court decision was objectively unreasonable.” Id. (internal quotation marks and citations omitted).
The application of this highly deferential standard, to the present case compels the conclusion that petitioner’s insufficiency of the evidence claim must fail. The Court of Appeals of Virginia
Petitioner argues that the record is devoid, of. any evidence that he used force, threats, or intimidation to commit the .offense, highlighting Ms. Whisenant’s silence and the fact that she eventually engaged in sex with petitioner. But the Court of Appeals of Virginia credited the jury’s finding that Ms. Whisenaht’s silence stemmed from fear for herself and her son, and found that there was trial record evidence that petitioner pinned Ms. Whisenant to thé wall'before committing the offense, constituting the predicate force, threats, or intimidation that led to the sexual encounter. In any event, petitioner’s arguments require precisely the type of “fine-grained factual parsing” that the Supreme Court has prohibited in adjudicating insufficiency of the evidence claims, as this unduly impinges on the role of the jury as fact-finder. Coleman, 132 S.Ct. at 2064. To set aside a jury verdict in these circumstances would be to engage in the kind of Monday-morning quarterbacking that the .Supreme Court has condemned. See Coleman, 132 S.Ct. at 2064 (“Under the deferential federal standard, the approach taken by the Court of Appeals .was flawed because it unduly impinged on the jury’s role as factfinder.”); Cavazos, 132 S.Ct. at 6 (“When the deference to state court decisions required by § 2254(d) is applied to the state court’s already deferential review ... there can be no doubt of the Ninth Circuit’s .error below.”). , In sum, the Court of Appeals of yirginia’s conclusion with .respect to the sufficiency of the evidence supporting petitioner’s conviction was not objectively unreasonable, especially in light of the fact that credibility determinations are exclusively the province of the jury.
Petitioner has one final argument with respect to this claim. He contends that his conviction for object sexual penetration is illogical because the jury acquitted petitioner of rape and sodomy. ’’ This argument is meritless and is foreclosed by Supreme Court precedent. See United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (“Sufficiency-of-the evidence review' involves 'assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt[ ] beyond a reason
In sum, applying the necessary highly deferential standard to petitioner’s insufficiency of the evidence claim, petitioner’s claim must be rejected, as the Court of Appeals of Virginia’s conclusion with respect to this claim was not objectively unreasonable.
VII.
In sum, respondent’s motion to dismiss must be granted in its entirety.
An appropriate Order will issue.
. ' The facts recited here are derived chiefly from the transcript of petitioner’s trial.
. Abel Brizuela v. Commonwealth of Virginia, No. 1349-11-1 (Va.Cir.Ct. Dec. 21, 2011), Respondent’s Motion to Dismiss, Ex. 2.
. Abel Brizuela v. Commonwealth of Virginia, No. 1349-11-1 (Va. July 5, 2012), Respondent’s Motion to Dismiss, Ex. 3.
. Abel Brizuela v. Director of the Department of Corrections, No. 1441926 (Va. March 28, 2014); Respondent's Motion to Dismiss, Ex. 6.
. Although this motion was not filed by counsel, petitioner requested that all mailings in the case be sent to Irena L. Karpinsky, Esq., even though she never filed a notice of appearance in this case.
. Abel Brizuela v. Harold W. Clarke, No. 1:14cv799 (E.D.Va. Oct. 2, 2015) (Doc. 15) (Order).
. The record reflects that petitioner completed serving his state sentence shortly after he filed.his § 2254 motion and was in the custody of United States Immigration and Customs Enforcement ("ICE”) at the time he filed his supplement to his § 2254 motion.
. See Abel Brizuela v. Director of the Department of Corrections, No. 1441926 (Va. March 28, 2014), Respondent’s Motion to Dismiss, Ex. 6 (hereinafter “Supreme Court of Virginia Decision”).
. Importantly, according to the Rules of the Supreme Court of Virginia, "no discovery
. Supreme Court of Virginia Decision at 2.
. Supreme Court of Virginia Decision at 2-3.
. Id. at 3.
.This conclusion likely stems from Ms. Whisenant’s testimony that petitioner used his legs to prevent her from moving while sexually assaulting her with his hands. See Supreme Court of Virginia Decision at 3.
. Supreme Court of Virginia Decision at 4.
. Id.
.See also Supreme Court of Virginia Decision at 3 ("[C]ounsel thoroughly cross-examined the victim as to how the sexual assault occurred.”).
. Supreme Court of-Virginia Decision at 5.
. Id.
.Habeas Corpus Petition at 11 A.
. It is therefore unnecessary to reach or decide whether equitable tolling applies to this claim since for purposes of petitioner’s motion it is assumed that this claim is timely because it relates back to claims raised in petitioner’s original habeas petition.
. This claim was adjudicated on direct appeal, and not in state collateral proceedings, because since "1889, it has been the rule in Virginia that a court will not inquire into the sufficiency of the evidence in a habeas corpus case.” Valentine v. Young, No. 27001, 2003 WL 21728873 at *2 (Va.Cir.Ct. Feb. 5, 2003). In any event, becaus'e the Court of Appeals of Virginia adjudicated petitioner's insufficiency of the evidence claim, this claim was "adjudi
. Abel Brizuela v. Commonwealth of Virginia, No. 1349-11-1 (Va.Cir.Ct. Dec. 21, 2011), Respondent's Motion to Dismiss, Ex. 2 at 3.
.. Id. at 4.
. See id. at 3.
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