Petition for Writ of Certiorari — Ernesto Wilfredo Solano Godoy, Petitioner v. Harold W. Clarke, Director, Virginia Department of Corrections

UNPUBLISHED

PD

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-7531

ERNESTO WILFREDO SOLANO GODOY,

Petitioner Appellant,

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V.

DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at

Alexandria. Leonie M. Brinkema, District Judge. (1:1 6-cv-0002 1 -LMB-JFA)

Submitted: April 28, 2017

Decided: May 10, 2017

Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Ernesto Wilfredo Solano Godoy, Appellant Pro Se. Susan Elizabeth Baumgartner,

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

i:

0

PER CURTAM:

Ernesto Wilfredo Solano Godoy seeks to appeal the district court's order denying

relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit

justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A

certificate of appealability will not issue absent "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief

on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists

would find that the district court's assessment of the constitutional claims is debatable or

wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003). When the district court denies relief on procedural grounds, the

prisoner must demonstrate both that the-dispositive procedural ruling is debatable,-and that

the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S.

at 484-85.

We have independently reviewed the record and conclude that Godoy has not made

the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to

proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument,

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

DISMISSED

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

Ernesto Wilfredo Solano Godoy

Plaintiff,

Civil Action No. I :16cv21

V.

Director, Virginia Dept. of Corrections

Defendant.

JUDGMENT

Pursuant to the order of this Court entered on September 28, 2016 and in accordance with

Federal Rules of Civil Procedure 58, JUDGMENT is hereby entered in favor of the

DEFENDANT and against the PLAINTIFF.

FERNANDO GALINDO, CLERK OF COURT

By:

Is!

Dana Van Metre

Deputy Clerk

Dated: 9/29/2016

Alexandria, Virginia

Case 1:16-cv-00021-LMB-JFA Document 19 Filed 09/28/16 Page 1 of 17 PagelD# 97

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

-Ape

Alexandria Division

Ernesto Wilfredo Solano Godoy,

Petitioner,

V.

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Director, Virginia Dep't of Corrections,

Respondent.

)

)

)

)

)

)

)

1: 16cv21 (LMB/JFA)

MEMORANDUM OPINION

Ernesto Wilfredo Solano Godoy, a Virginia inmate proceeding pro

,

has filed a petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his

conviction of rape, forcible sodomy and other offenses following a jury trial in the Circuit Court

of Fairfax County. Before this Court is the responcnt's Motion to Dismiss this petition.

I. Background

Godoy was charged with, and convicted of, burglary, rape, forcible sodomy, and two

counts of object sexual penetration. Case No. FE-2011-1290. He was1sentenced to an aggregate

of forty-five (45) years imprisonment with ten (10) years suspended. In its opinion affirming

Godoy's convictions, the Court of Appeals of Virginia described the underlying facts as follow:

At trial, the Commonwealth presented evidence that appellant used

various tools to pry open the balcony door of K.A.A.'s apartment and

entered her bedroom in the early morning hours of June 4, 2011.

K.A.A. awoke to see a masked individual picking up her infant child

from her bed and placing the infant in his crib nearby. When K.A.A.

asked who was there, appellant approached her and brandished a large

knife, which he dragged across the length of her body while

indicating she remain quiet. Appellant then raped and sodomized

K.A.A. repeatedly, at one point threatening to return the following

day and kill her.

Following the attack, appellant demonstrated to K.A.A. that he had

not harmed her three children who were sleeping in a different room.

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He left shortly thereafter, and K.A.A. called a friend [and] then

contacted 911. K.A.A. subsequently was examined by a trained

sexual assault nurse, who observed abrasions and redness consistent

with forcible rape. In

fingerprints and a shoe impression on the balcony railing. They also

found a bottle of bleach apparently used for the purpose of removing

evidence of the prints, as well as fingerprints on a number of tools

located on the balcony. The knife appellant used was discovered on

the floor of K.A.A's bedroom. Police apprehended appellant after

showing a sketch of the perpetrator to K.A.A. 's colleagues at work,

one of whom recognized appellant as a former employee

Appellant presented evidence in his defense that he and K.A.A. had

been conducting an affair and that she had invited him to her

apartment on the night of the offense. According to appellant, K.A.A.

became angry with him throughout the course of the evening because

he was attempting to break off the relationship, causing him to retreat

to the balcony at one point. While appellant was on the balcony, his

cellular telephone began to ring with a unique ringtone that signified

his wife was calling. Appellant claimed that K.A.A. grabbed the

telephone, locked the balcony door with appellant still outside, and

proceeded to taunt appellant, indicating that she would answer the

call and report their affair to his wife. Appellant then attempted to

pry open the balcony doors, using tools that he found outside. K.A.A.,

however, chose not to answer the phone and eventually let appellant

back inside the apartment.

Appellant admitted that he had sexual intercourse with K.A.A. and

that he touched her sexually in the various ways alleged in the

Commonwealth's case-in-chief, but stated that all of the acts were

consensual. He stated that he already knew how to get to K.A.A.'s

apartment because he had visited on a previous occasion to discuss

purchasing an auto part from her boyfriend.

Godoy v. Commonwealth. 62 Va. App. 113, 116-17, 742 S.E.2d 407, 409 (May 28, 2013).'

The Supreme Court of Virginia refused Godoy's petition for a further appeal on December 12,

2103, and refused rehearing on March 7, 2014.

'Because a federal court on habeas review of a state conviction must defer to findings of fact

made by state trial and appellate courts, 28 U.S.C. § 2254(d), it is appropriate to look to the state

court's recitation of the salient facts.

Case 1:16-cv-00021-LMB-JFA Document 19 Filed 09/28/16 Page 3 of 17 PagelD# 99

On March 9, 2015, Godoy timely filed a petition for a state writ of habeas corpus in the

Supreme Court of Virginia, raising the following claims:

He received ineffective assistance of counsel when

his attorney allowed testimony and evidence to be

presented to the jury in violation of the Confrontation

Clause.

He received ineffective assistance of counsel when

his attorney failed to present defense witnesses to

contradict the prosecution's evidence.

His right to due process was violated when the

prosecution submitted improper and prejudicial

comments to the jury, thus denying him a fair and

impartial trial.

He received ineffective assistance of counsel when

his attorney failed to object to the prosecution's

improper and prejudicial comments to the jury.

He received ineffective assistance of appellate counsel

when his attorney failed to argue against the

prosecution's improper and prejudicial comments to

the jury, involving the ends of justice exception to

overcome his failure to preserve at trial.

He received ineffective assistance of appellate counsel

when his attorney failed to argue that the evidence

was insufficient to establish his guilt.

His right to due process was violated because the

evidence in its totality was insufficient to support guilt

of each element beyond a reasonable doubt.

The Supreme Court of Virginia dismissed the petition on November 17, 2015. Godoy v.

Director, Va. Dep't of Corr., R. No. 150387 (Va. Nov. 17, 2015).

Godoy then turned to the federal forum and filed the instant application for relief pursuant

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to 28 U.S.C. § 2254 on December 18, 20 1 5,2 reiterating the same claims he made in the state

habeas proceeding. Respondent has filed a Rule 5 Answer and a Motion to Dismiss the petition,

along with the notice required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local

Rule 7(K), and petitioner has filed a reply. Accordingly, the matter is now ripe for disposition.

II. The Petition is Timely

Respondent argues that the petition is subject to dismissal as time-barred, but his position

is flawed. A § 2254 petition for a writ of habeas corpus must be dismissed if filed later than one

year after (1) the judgment becomes final; (2) any state-created impediment to filing a petition is

removed; (3) the United States Supreme Court recognizes the constitutional right asserted; or (4)

the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. §

2244(d)(1)(A)-(D). For federal purposes, a conviction becomes final not on the date the

disposition of a state appeal occurs, as the respondent has assumed, but rather ninety days

--

thereafter, when the time expires for filing a petition for a writ of certiorari in the United States

Supreme Court. See U.S. Sup. Ct. R. 13(1) (petitions for review are timely filed within 90 days of

the entry ofjudgment by a state court of last resort); §ee also Lawrence v. Florida, 549 U.S. 327,

333 (2007). Here, then, as petitioner argues, the § 2254(d) limitations period did not begin to run

until June 5, 2014, ninety days after the Supreme Court of Virginia denied his motion for

rehearing on direct appeal. Pet. Reply at 2. From that date until Godoy filed his state habeas

litigant is deemed filed

For federal purposes, a pleading submitted by an incarcerated p

when it is delivered to prison officials for mailing. Lewis v. City of Richmond Police Dep't, 947

F.2d 733 (4th Cir. 1991); see also Houston v. Lack, 487 U.S. 266 (1988). In this case, petitioner

certified that he placed his petition in the prison mailing system on December 18, 2015. Pet. at 30.

Respondent's assertion that the petition was not filed until December 21, 2015 appears to be

predicated on the postmark of the envelope in which it was mailed, Pet., Aft. 1, but the determinative

circumstance is the date the prisoner provides the pleading to prison officials for mailing, rather than

the date the officials actually mail it. Id.

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application on March 19, 2015, 242 days elapsed. The statute of limitations was tolled while the

state habeas proceeding was pending. See 28 U.S.C. § 2244(d)(2). After the state habeas

petition was dismissed on November 17, 2015, 31 additional days passed until Godoy filed this

federal petition on December 18, 2015. See n. 2, supra. When those periods are combined a

total of only 273 days elapsed between the date the convictions at issue became final and the date

this federal petition was filed, and the petition accordingly is timely.

III. Procedural Default

Claims 3 and 7 of this petition, in which Godoy argues that his right to due process was

violated by alleged trial errors, are procedurally defaulted from consideration on the merits. In

both instances, the Supreme Court of Virginia on state habeas review determined pursuant to

Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974) that the non-jurisdictional issue

presented could have been raised at trial and on direct appeal and therefore was-not cognizable in

a habeas proceeding. On federal habeas corpus review, § 2254(d) mandates that a state court's

finding of procedural default be presumed correct, provided that the state court relied explicitly

on the procedural ground to deny petitioner relief and that the rule relied on is an independent

and adequate state ground for denying relief. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). The

Fourth Circuit has consistently held that "the procedural default rule set forth in Slayton

constitutes an adequate and independent state law ground for decision." Mu'min v. Pruett, 125

F.3d 192, 196-97 (4th Cir. 1997). Therefore, the Virginia court's express finding that Slayton

barred review of Claims 3 and 7 of this petition also precludes federal review of those claims.

A federal court may not review a procedurally barred claim absent a showing of cause

and prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris v. Reed,

489 U.S. 255, 262 (1989). In his reply, petitioner argues that the defaults of claims 3 and 7 were

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Case 1:16-cv-00021-LMB-JFA Document 19 Filed 09/28/16 Page 6 of 17 PagelD# 102

the result of ineffective assistance of counsel. Pet. Reply at 3. Petitioner has also asserted the

same instances of ineffective assistance as free-standing claims in claims 4 and 6 of this petition,

and as will be discussed infra, neither has merit. When a claim of ineffective assistance fails, it

cannot furnish cause and prejudice to excuse a procedural default. Schmitt v. Kelly, 189 Fed.

App'x 257, 274-76 (4th Cir. 2006). Accordingly, Godoy has failed to overcome the procedural

default of claims 3 and 7, and they are precluded from federal review.

IV. Merits Standard of Review

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 an unreasonable application of, clearly established federal law, or based on an

unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is

"contrary to"-or "an unreasonable application of' federal-law requires an independent review of

each standard. See Williams v. Taylor, 529 U.S. 362, 412-13 (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] Court on a question of law or if the state court

decides a case differently than [the United States Supreme] Court has on a set of materially

indistinguishable facts." jj at 413. Under the "unreasonable application" clause, the writ should

be granted if the federal court finds that the state court "identifies the correct governing legal

principle from [theSupreme] Court's decisions but unreasonably applies that principle to the

facts of the prisoner's case." Id. Importantly, this standard of reasonableness is an objective one.

Id. at 410. Under this standard, "[tJhe focus of federal court review is now on the state court

decision that previously addressed the claims rather than the petitioner's free-standing claims

themselves." McLee v. Anglone, 967 F. Supp. 152,156 (E.D. Va. 1997), appeal dismissed, 139

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F.3d 891 (4th Cir. 1998) (table).

V. Analysis

In all of his federally-cognizable claims, petitioner asserts that he received ineffective

assistance of counsel. To establish ineffective assistance of counsel, a petitioner must show that

(1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the

defendant." Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove that counsel's

performance was deficient, a petitioner must show that "counsel's representation fell below an

objective standard of reasonableness," id. at 688, and that the "acts and omissions" of counsel

were, in light of all the circumstances, "outside the range of professionally competent

assistance." Id. at 690. Such a detennination "must be highly deferential," with a "strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance." Id. at 689.

To satisfy Strickland's prejudice prong, a "defendant must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have

been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient

to undermine confidence in the outcome." Id.; accord Lovitt v. True, 403 F.3d 171, 181 (4th Cir.

2005). The burden is on the petitioner to establish not merely that counsel's errors created the

possibility of prejudice, but rather "that they worked to his actual and substantial disadvantage,

infecting his entire trial with errors of constitutional dimension." Murray v. Carrier, 477 U.S.

478, 494 (1986) (citations omitted). The two prongs of the Strickland test are "separate and

distinct elements of an ineffective assistance claim," and a successful petition "must show both

deficient performance and prejudice." Spencer, 18 F.3d at 233. Therefore, a court need not

review the reasonableness of counsel's performance if a petitioner fails to show prejudice.

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Ouesinberry v. Taylor, 162 F.3d 273, 278 (4th Cir. 1998).

In claim (1), petitioner argues that he received ineffective assistance of counsel when his

lawyer allowed testimony and evidence to be presented to the jury in violation of petitioner's

rights under the Confrontation Clause. Specifically, petitioner argues that his right to

confrontation was violated when his cellular telephone records were admitted as business records

through a records custodian and then discussed by an expert. He contends that the

Commonwealth's witnesses "were not custodians who could verify as to 'who' the records

belonged to, 'who was in use of the phones during the time, and more importantly, to attest to the

validity of the records themselves." Pet. at 6. He also asserts that a police officer was wrongly

permitted to testify about petitioner's statement regarding what his telephone number was and to

have his recollection refreshed during the testimony. Pet. at 5. When petitioner made this same

claim in his state habeas corpus action, the Supreme Court of Virginia rejected it on the

following reasoning:

In a portion of claim (a), petitioner contends he was denied the

effective assistance of counsel because counsel failed to object to the

admission of petitioner's phone records. Petitioner contends counsel

should have argued admission of the records violated petitioner's

right to confront the witnesses against him because the phone records

are affidavits, which fall within the 'core class of testimonial

statements' protected by the Confrontation Clause under Crawford v.

Washington, 541 U.S. 26 (2004).

The Court holds that this portion of claim (a) satisfies neither the

'performance' nor the 'prejudice' prong of the two-part test

enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984).

The record, including the trial transcript, demonstrates that the

Commonwealth admitted petitioner's cellular telephone records

through Ronald Witt, a custodian of records for T-Mobile telephone

company. Witt explained that the records were 'self-generating

automatically through the computer system as the calls are received

or made' without human assistance. Affidavits are 'declaration[s] of

facts written down and sworn to by the declarant before an officer

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authorized to administer oaths.' Black's Law Dictionary 62 (8th ed.

2004). Counsel could reasonably have determined any arguments that

the records were inadmissable affidavits would have been meritless.

Thus, petitioner has failed to demonstrate that counsel's performance

was deficient or that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceedings would have

been different.

In another portion of claim (a), petitioner contends he was denied the

effective assistance of counsel because counsel failed to object to a

police officer's testimony, which included petitioner's cell phone

number and linked petitioner to the cell phone records admitted

through Witt. Petitioner further contends counsel was ineffective for

failing to object to the testimony of the Commonwealth's expert in

cellular phone technology. Petitioner contends counsel should have

objected to the testimony of these witnesses because neither was a

custodian of the cell phone records, neither could verify who the

records belonged to or who was using the phones identified in the

records at the time, and neither could attest to the validity of the

records.

The Court holds that this-portion of claim (a)satisfies neither the

'Performance' nor the 'prejudice' prong of the two-part test

enunciated in Strickland. The record, including the trial transcript,

demonstrates that the Commonwealth admitted the records through

Witt, who was the custodian of the records. Witt testified the records

were kept within the normal course of business and were relied upon

by employees to perform work-related functions. Witt examined the

records and they accurately depicted T-Mobile's records. Counsel

could reasonably have determined it was not relevant to the

admissibility of their testimony that the officer and the

Commonwealth's expert were not the custodians of the records and

that the validity of the records had been established by Witt. The

record further demonstrates that the officer testified petitioner had

told him that the number associated with the records was petitioner's

cell phone record. Petitioner subsequently testified he was in

possession of the cell phone at the time of the offenses, which was

also the time period covered by the records. Counsel could reasonably

have determined any question as to the witnesses' ability to state who

the records belonged to and who was using the cell phone during the

relevant time period was not relevant to the admissibility of their

testimony. Thus, petitioner has failed to demonstrate that counsel's

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the proceedings

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would have been different.

Godoy v. Dir., Va. Dep't of Corr., supra, slip op. at 2 3.

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The state court's foregoing determination was consistent with applicable federal

authorities. Petitioner's argument that counsel should have argued on the basis of Crawford v.

Washington that his telephone records were equivalent to affidavits and therefore protected by

the Confrontation Clause is entirely misplaced. First, Crawford is inapposite because it

addressed the issue of when a defendant has the right to confront an out-of-court declarant. See

Crawford, 541 U.S. at 59 (holding that testimonial statements of witnesses absent from trial are

admissible only where the declarant is unavailable and the defendant has had a prior opportunity

to cross-examine). Here, on the other hand, the telephone records at issue were computer

generated automatically and involved no out-of-court declarant. See United States v.

Washington, 498 F3d 225, 231 (4th Cir.-2007) (finding that the -Confrontation Clause is not

implicated in such situations because "raw data generated by the machines do not constitute

'statements,' and the machines are not 'declarants"). Petitioner's assertion that the telephone

records should have been considered affidavits is simply incorrect, as explained by the state

court. Lastly, there would have been no valid objection for counsel to raise concerning the

expert's testimony interpreting the telephone records. See United States v. Patterson, 713 F.3d

1237, 1247 n. 7 (10th Cir. 2013) (where phone records were admitted through a telephone

company employee, agent's subsequent testimony interpreting the records did not violate the

Sixth Amendment). In short, none of the evidence to which petitioner argues his counsel should

have objected was inadmissible; therefore, counsel's failure to make such objections did not

amount to ineffective assistance. See Moody v.Polk, 403 F.3d 141, 151 (4th Cir. 2005)

(holding counsel not required to file frivolous motions). Accordingly, the state court's dismissal

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of claim 1 may not be altered here. Williams, 529 U.S. at 412-13.

In claim (2), petitioner asserts that he received ineffective assistance of counsel when his

attorney failed to present defense witnesses to contradict the prosecution's evidence. Specifically,

he contends that his wife could have testified that she tried to call him "several times throughout

the night" in question. Pet. at 8. Petitioner has supplied no affidavit to support that assertion.

The Supreme Court of Virginia found no merit to this argument, as follows:

In another portion of claim (b), petitioner contends he was denied the

effective assistance of counsel because counsel failed to call

petitioner's wife to testify at trial. Petitioner alleges his wife would

have testified that she attempted to call petitioner several times on the

night of the offenses, which would have bolstered petitioner's

testimony that the only reason he attempted to break into the victim's

home through her balcony door was that the victim had petitioner's

cell phone and petitioner could hear it ringing and knew his wife was

trying to call him.

The Court hids that this portion of claim (b) satisfies neither the

'performance' nor the 'prejudice' prong of the two-part test

enunciated in Strickland. Petitioner fails to provide any support that

his wife would have been willing and able to testify as he contends.

Further, the record, including the trial transcript, demonstrates that at

the time of the offenses petitioner's phone was either turned off, its

battery was dead, or it was otherwise the outside the range of service

and could not connect to any cell tower. Therefore, even if

petitioner's wife had testified that she attempted to call him, it would

not have bolstered his testimony that he attempted to break into the

victim's home because he could hear the phone ringing. Thus,

petitioner has failed to demonstrate that counsel's performance was

deficient or that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceedings would have

been different.

Godoy v. Dir., Va. Dep't of Corn, supra, slip op. at 3.

The foregoing holding was a reasonable application of the Strickland principles. In

general, courts "are reluctant to find ineffective assistance based upon complaints regarding

uncalled witnesses." Lenz v. True, 370 F. Supp. 2d 446, 479 (W.D. Va. 2005). A petitioner

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cannot show that he was prejudiced by the absence of a witness' testimony unless he

demonstrates "not only that [the] testimony would have been favorable, but also that the witness

would have testified at trial." Alexander v. McClotter, 775 F.2d 595, 602 (5thCir. 1985). Thus,

where a petitioner fails to proffer precisely what testimony a missing witness would have

provided and to supply an affidavit verifying that proffer, he does not meet his burden to

demonstrate that counsel's performance was ineffective. See Makdessi v. Watson, 682 F. Supp.

2d 633, 654 (E.D. Va. 2010). Petitioner in this case made no such proffer. Accordingly, the

Supreme Court of Virginia's holding was factually reasonable and in accord with controlling

federal principles, and its determination may not be disturbed here. Williams, 529 U.S. at 41213.

In claim (4), petitioner argues that he received ineffective assistance of counsel when his

attorney failed to object to the prosecution's improper and prejudicial comments to the jury. The

Supreme Court of Virginia determined that this position was meritless for the following reasons:

In claim (d) and a portion of claim (e), petitioner contends he was

denied the effective assistance of counsel because counsel failed to

object when the prosecutor made improper and objectionable

comments during closing argument. Petitioner alleges the prosecutor

improperly stated that petitioner was 'lying to extricate' himself,

'tweaked his story,' and fled to avoid apprehension. Petitioner further

alleges the prosecutor was believable and deserved 'an Academy

Award if she is lying.'

The Court holds that claim (d) and this portion of claim (e) satisfy

neither the 'performance' nor the 'prejudice' prong of the two-part

test enunciated in Strickland. The record, including the trial

transcript, demonstrates that the prosecutor did not state that

petitioner was lying. The prosecutor did argue petitioner had a

motive to lie and that his version of events was replete with

inconsistencies and contrary to the physical evidence and human

experience. The prosecutor further argued petitioner 'tweaked' his

explanation for how his footprints came to be on the victim's balcony

and in that his testimony at trial varied from the explanation he was

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109

provided the police shortly after the crimes. While a prosecutor may

not express his personal belief or opinion as to a defendant's guilt or

the credibility of a witness, she may argue the evidence and the fair

inferences that arise from the evidence show the defendant is guilty.

Counsel could reasonably have determined the prosecutor did not

improperly express a personal opinion as to petitioner's guilt or

credibility.

The record further demonstrates that when the police sought to

question petitioner about the crimes, petitioner left the home he

shared with his wife and child, went to stay with a friend, and began

to make plans to leave the country. Thus, counsel could have

determined the prosecutor's argument that petitioner attempted to flee

was supported by the evidence and not objectionable.

Finally, the record demonstrates that petitioner's counsel argued in

closing that the victim had fabricated the allegations against petitioner

because she had been having an affair with petitioner and became

afraid her boyfriend would find out. The victim reported to a friend

that she had been raped immediately after petitioner left her home and

then had called 911 to report the rape to police immediately after that.

Her 911 -- call was played to the jury. Responding to petitioner's

argument that the victim had made up the allegations, the prosecutor

pointed to the recording and the victim's testimony and stated that if

petitioner were to be believed and the victim disbelieved then the

victim was a 'great actress' and that she 'must deserve and Academy

Award.' Counsel could reasonably have determined these comments

were an appropriate response to his closing argument and did not

sufficiently express the prosecutor's personal opinion of the

credibility of the witnesses to warrant an objection. See Evans v.

Thompson, 881 F.2d 117, 125 (4th Cir. 1989) (whether to object to

prosecutor's argument 'is a judgment trial attorneys make routinely.

It does not give rise to a claim under Strickland.') Thus, petitioner has

failed to demonstrate that counsel's performance was deficient or that

there is a reasonable probability that, but for counsel's alleged errors,

the result of the proceedings would have been different.

Godoy v. Dir., Va. Dep't of Corr., supra, slip op. at 4 5 (state citations omitted).

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The foregoing holding was both factually reasonable and in accord with applicable

federal authorities. Factually, the record does not bear out petitioner's assertions that the

prosecutor acted improperly, because the prosecutor's comments in rebuttal were clearly invited

13

110

Case 1:16-cv-00021-LMB-JFA Document 19 Filed 09/28/16 Page 14 of 17 PagelD#

responses to petitioner's own closing argument. The record reveals that the Commonwealth's

initial closing argument consisted entirely of a review of the evidence that had been presented to

the jury. Godoy v. Comm., R. No. 0369-12-4, Comm. App. Vol. II at 27-38. Petitioner then

presented an argument centered on the theory the victim had made up the rape accusation

because she was a scorned woman, id. at 38-85, "tossed away like an old rag." Id. at 83. He

pointed out that she had children by multiple fathers, id. at 58, "she was the one and only person

to take care of all these kids," id. at 83, and she had accused petitioner of sexual crimes because

"he could not be her new boyfriend." Id. at 84. Petitioner suggested that the victim did not

behave like a rape victim following the incident, id. at 48, 57, 80-82, and suggested that she

faked her distress during the physical portion of the rape exam. jç at 68. Petitioner bookended

d.

his remarks by asking the jury, "Who is more believable? Is it [K.A.A.] or is it [petitioner]?" I

at 48, 80. In rebuttal, theCommonwealth fairly responded with arguments as to why the jury

should believe K.A.A. rather than the petitioner. I4 at 86-114.

It is well established in federal jurisprudence that a lawyer's "strategic choices

...

are

virtually unchallengeable" Gray v. Branker, 529 F.3d220, 229 (4th Cir.), cert. denied. 556

U.S.

1106 (2009). Thus, an attorney's routine judgment as to whether to object and draw further

attention to an issue will not support a claim of ineffective assistance. Evans, 881 F.2d at 125.

Here, since nothing in the Commonwealth's rebuttal closing argument was sufficiently egregious

to demand an objection, counsel's tactical decision not to do so does not warrant habeas relief,

and the Virginia courts' rejection of claim 4 must be allowed to stand. Williams, 529 U.S. at

412-13.

In claim (5), petitioner asserts that his appellate counsel provided ineffective assistance

by falling to argue against the prosecution's improper and prejudicial comments to the jury,

14

Case 1:16-cv-00021-LMB-JFA Document 19 Filed 09/28/16 Page 15 of 17 PagelD# 111

involving the ends ofjustice exception to overcome his failure to preserve at trial. The Supreme

Court of Virginia rejected this contention on the following holding:

In another portion of claim (e), petitioner contends he was denied the

effective assistance of counsel on appeal because counsel failed to

argue the prosecutor made improper remarks during closing

argument.

The Court holds that this portion of claim (e) satisfies neither the

'performance' nor the 'prejudice' prong of the two-part test

enunciated in Strickland. The selection of issues to address on appeal

is left to the discretion of appellate counsel, and counsel need not

address very possible issue on appeal. Jones v. Barnes, 463 U.S. 745,

751-52 (1983). Thus, Petitioner has failed to demonstrate that

counsel's performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the result of the

proceeding would have been different.

Godoy v. Dir., Va. Dep't of Corn, supra, slip op. at 5.

The-Strickland analysis applies to claims of ineffective assistance on appeal as well as at

trial. Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987). For the reasons discussed in

connection with claim 4, appellate counsel's decision not to assign error to the prosecutor's

rebuttal closing argument did not amount to ineffective assistance for several reasons. First,

because the argument was not improper, trial counsel interposed no objection, and there was no

preserved error upon which appellate counsel could have predicated an argument. Second,

appellate counsel made the tactical decision to present thirteen (13) assignments of error on

direct appeal, and for the reasons discussed above, there is nothing to suggest that the

unpreserved argument alleging prosecutorial misconduct would have been clearly stronger than

those:See Smith v. Robbins, 528 U.S. 259, 288 (2000) ("Generally, only when ignored•

[appellate] issues are clearly stronger than those presented, will the presumption of effective

d no

assistance be overcome.") Accordingly, the state court's holding that claim 5 warrante

15

relief

Case 1:16-cv-00021-LMB-JFA Document 19 Filed 09/28/16 Page 16 of 17 PagelD# 112

was both factually reasonable and in accord with controlling federal authorities, and the same

result is compelled here. Williams, 529 U.S. at 412-13.

In his sixth claim, petitioner faults appellate counsel for failing to argue that the evidence

was insufficient to support the convictions. The Supreme Court of Virginia found no merit to

..

this argument, as follows:

The Court holds claim (f) satisfies neither the 'performance' nor the

'prejudice' prong of the two-part test enunciated in Strickland. The

selection of issues to address on appeal is left to the discretion of

appellate counsel, and counsel need not address very possible issue

on appeal. Barnes, 463 U.S. at 751-52. Thus, petitioner has failed to

demonstrate that counsel's performance was deficient or that there is

a reasonable probability that, but for counsel's alleged errors, the

result of the proceeding would have been different.

Godoy v. Dir., Va. Dep't of Corr., supra, slip op. at 5 6.

-

Petitioner's sixth claim is without merit for the simple fact that the evidence of his guilt

was overwhelming. After the incident, K.A.A. had vaginal abrasions and cervical redness

consistent with having been raped, and petitioner's DNA was found in her vagina and anus. Her

balcony door was broken off its tracks, and the police recovered tools and bleach used to try to

clean them on the balcony. Petitioner's fingerprints were found on the tools, the balcony, and the

railing leading to a landing he used to climb onto the balcony. Police found the knife he wielded

between the victim's bed and her baby's crib. And after the rape, petitioner hid at a friend's

house and talked about plans to flee the country. Under these circumstances, an argument that

the evidence was insufficient to sustain the convictions patently would not have been stronger

than those appellate counsel chose to present, Smith, 528 U.S. at 288, and the state court's

determination that its omission did not amount to ineffective assistance accordingly must not be

disturbed. Williams, 529 U.S. at 412-13.

16

Case 1:16-cv-00021-LMB-JFA Document 19 Filed 09/28/16 Page 17 of 17 PagelD# 113

VI. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss this petition will be granted,

and the petition will be dismissed with prejudice. An appropriate Order and judgment shall

issue.

Entered this

2016.

day of

Alexandria, Virginia

Is! z&

Leonie M. Brinkema

United States District Judge

17

FILED: June 16, 2017

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-7531

(1:16-cv-00021-LMB-JIFA)

ERNESTO WILFREDO SOLANO GODOY

Petitioner Appellant

-

V.

DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS

Respondent Appellee

-

ORDER

The court denies the petition for rehearing. The court grants the motion for

leave to exceed the word limitation.

Entered at the direction of the panel: Judge Wilkinson, Judge Keenan and

Judge Diaz.

For the Court

Is! Patricia S. Connor. Clerk