Wright v. Graves, Record No. 1079-22-3 (Va. Ct. App. Oct. 17, 2023)
The Court of Appeals considers whether a plaintiff properly pled his actual innocence after winning habeas relief from his conviction.
Facts. Mark O’Hara Wright, his brother Robert, and Robert’s stepson shoplifted sandwiches and two cases of beer from a grocery store. A security guard confronted them in the parking lot and took one of the cases of beer from Robert. Wright remained on the other side of a minivan that he was driving out of the guard’s view. Robert grabbed the case of beer back and the three drove away in the minivan.
Andrew C. Graves represented Wright in his criminal trial, where Wright was convicted on multiple charges, including grand larceny from the person. About three months before the end of Wright’s ten-year-sentence, the Fourth Circuit awarded Wright habeas relief from the grand-larceny-from-the-person conviction due to Graves’ ineffective assistance of counsel. Graves agreed to an “unequivocally” incorrect jury instruction that stated that grand larceny from the person was a lesser-included offense of robbery. The jury acquitted Wright of robbery but convicted him of grand larceny from the person.
Wright then sued Graves for legal malpractice. He incorporated the Fourth Circuit’s opinion by reference in his pleading. Graves demurred to the complaint because it failed to establish Wright’s actual innocence, an element of a criminal legal malpractice case. The trial court agreed, but gave Wright leave to amend. He filed a “motion to amend” along with an affidavit. Graves demurred again, and the trial court agreed again, this time with prejudice. Wright appealed.
Issue. Whether Wright properly pled his actual innocence.
Holding. Yes. Wright pleaded that he was actually innocent of the crime he was convicted of: grand larceny from the person.
Notes. To establish a legal malpractice claim, a plaintiff must plead “the existence of an attorney-client relationship which gave rise to a duty, breach of that duty by the defendant attorney, and that the pecuniary damages claimed by the plaintiff client were proximately caused by the defendant attorney’s breach.” Where the malpractice happens in the context of a criminal matter, the plaintiff must plead two additional elements to satisfy proximate causation: that he received post-conviction relief (with at least one exception) and that he was actually innocent of the crime he was convicted of. Here, Wright alleged that he never interacted with the security guard, let alone “any person with whom he could have committed grand larceny from the person,” and this was in accordance with the Fourth Circuit’s opinion, which he incorporated by reference. Further, Wright’s conviction in his criminal case does not estop him from asserting his innocence in this civil case because there is no mutuality of parties between the actions. Thus, the case is remanded for proceedings on the merits.
Concurrence. Judge Lorish pens a concurrence, arguing that the Court should weigh in on the question of whether pleading post-conviction relief without actual innocence can satisfy the proximate causation element of a criminal malpractice case. The Supreme Court has found at least one instance where the reverse is true: pleading only actual innocence without post-conviction relief is sufficient where a plaintiff is unable to establish actual innocence due to his attorneys’ negligent failure to file for post-conviction relief. Since Wright raised the issue on appeal and will have to prove his actual innocence at trial, Judge Lorish believes the Court should answer that question here.