No Habeas Relief for Online ‘Date’ Assailant

An Alexandria U.S. District Court rejects petitioner’s claims of ineffective assistance of trial counsel in his prosecution and conviction of animate object sexual penetration in violation of Va. Code § 18.2-67.2; petitioner was convicted for sexually assaulting a woman he dated after meeting her on the dating website plentyoffish.com.

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 he or she was “not comfortable with how deliberations took place.” The Supreme Court of Virginia found petitioner was unable to satisfy either the i performance or prejudice prongs of Strickland v. Washington.

On this record, the Supreme Court of Virginia’s conclusion was certainly not an unreasonable application of Strickland. Petitioner 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. 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.

The court also rejects petitioner’s second claim of ineffective assistance, alleging trial counsel failed to challenge a witness’s trial testimony adequately in light of petitioner’s assertion that it would have been physically impossible for him to have held the witness against a wall while simultaneously sexually assaulting her. The Virginia Supreme Court found the witness’s testimony established that petitioner could have pinned her against the wall and proceeded to sexually assault her and furthermore, counsel thoroughly cross-examined the victim as to how the assault occurred. In addition, this claim fails the Strickland test. Petitioner’s third claim – that trial counsel was ineffective for failing to subpoena the victim’s mental health records – likewise fails.

Petitioner’s final ineffective assistance claim, that trial counsel was ineffective by failing to subpoena records from the dating website plentyoffish.com, also fails. The Virginia Supreme Court found this claim failed both Strickland prongs because petitioner failed to proffer the Internet record or any evidence of what they would have shown. The Supreme Court also attached importance to the fact that the victim did not testify that petitioner was the only man she had met or communicated with on the website, but rather stated that he was the first man she met online.

Petitioner also contends the evidence was insufficient to convict him because the record is devoid of any evidence that he used force, threats or intimidation to commit the offense, highlighting the victim’s silence and the fact that she eventually engaged in sex with petitioner. But the Virginia Court of Appeals credited the jury finding that the victim’s silence stemmed from fear for herself and her son, and found that there was trial record evidence that petitioner pinned the victim to the wall before committing the offense, constituting the predicate force, threats or intimidation that led to the sexual encounter.

Brizuela v. Clarke (Ellis) No. 1:14cv799, June 18, 2015; USDC at Alexandria, Va. VLW 015-3-320, 25 pp.