Identical indictments did not violate double jeopardy rights

Appellant is not entitled to habeas corpus relief based on counsel’s failure to object at trial that appellant’s multiple convictions based on identical indictments violated his double jeopardy rights.

Overview

Appellant Dodd was convicted of three counts each of forcible sodomy of a child under 13, taking indecent liberties with a minor while in a custodial relationship and aggravated sexual battery of a child under 13.

“The indictments were facially identical for each count of the specific offenses. The jury instructions, like the indictments, failed to differentiate between Dodd’s three charges for each offense by date or underlying conduct. During deliberations, the jurors asked whether there were one or three counts for each of the three different offenses. The trial court referred them to their instructions.

“The jury sentenced Dodd to five years for each of the indecent liberties charges; eight years for each of the aggravated sexual battery charges; and twenty years for each of the sodomy charges. The trial court suspended twenty years of the sentence, leaving a total active sentence of seventy-nine years.”

The Court of Appeals affirmed. The Virginia Supreme Court refused his appeal petition.

Dodd then petitioned the circuit court for habeas corpus relief. He argued that he received ineffective assistance because defense counsel did not object to the multiple identical indictments. The circuit court denied the petition.

Discussion

“‘A prisoner is not entitled to use habeas corpus to circumvent the trial and appellate processes for an inquiry into an alleged non-jurisdictional defect of a judgment of conviction.’ …

“When a petitioner had the opportunity at trial and on direct appeal to raise constitutional issues but failed to do so, the petitioner ‘lacks standing to raise the claim in a petition for writ of habeas corpus.’ …

“While we recognize that Dodd’s double jeopardy and due process arguments could have been raised at trial or on direct appeal, the significant portion of Dodd’s appeal consists of his allegation that his trial counsel failed to object to the constitutional violations.”

An ineffective assistance claim must establish that counsel’s performance was deficient and that the defendant was prejudiced as a result. The prejudice prong of this two-part test may be examined first by the reviewing court.

“[W]e conclude that Dodd did not suffer prejudice sufficient to undermine confidence in the outcome of the proceedings as a result of trial counsel’s failure to object to the alleged due process and double jeopardy violations.

“Dodd relies on Valentine v. Kontech, 395 F.3d 626 (6th Cir. 2005), in which the Sixth Circuit held that the defendant’s twenty identical indictments for rape and twenty identical indictments for sexual penetration of a child failed to give the defendant adequate notice of the charges against him or permit him to effectively assert potential double jeopardy violations. … The Sixth Circuit upheld only one count of rape and one count of sexual penetration of a child. …

“Decisions of the Sixth Circuit, while informational, are not binding on this Court. …

“There is no clearly established Supreme Court precedent addressing the constitutionality of multiple identical indictments. Further, Dodd fails to cite to any decisions from this Court, nor are we aware of any, addressing this issue.

“We hold that trial counsel was not required to make claims based on double jeopardy and due process because they would have likely failed, as no controlling caselaw existed holding that multiple identical indictments violate a defendant’s constitutional rights. Therefore, Dodd has failed to prove that he was prejudiced by the inaction of his trial counsel.”

The circuit court properly denied Dodd’s habeas petition.

Affirmed.

Dodd v. Clarke, Record No. 200091, Feb. 4, 2021. (Order) From the Circuit Court of Chesterfield County. Jonathan Paul Sheldon for appellant, Rosemary Virginia Bourne for appellee. VLW 021-6-003, 4 pp.