Clifton Collins v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00763-JAG. Copies to all parties and the district court/agency. [999779264]. [14-7082]

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 1 of 21

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7082

CLIFTON L. COLLINS,
Petitioner - Appellant,
v.
HAROLD
W.
CLARKE,
Corrections,

Director,

Virginia

Department

of

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:13-cv-00763-JAG)

Argued:

December 9, 2015

Decided:

March 22, 2016

Before KING, SHEDD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: David Bernard Hargett, HARGETT LAW, PLC, Glen Allen,
Virginia; James T. Maloney, JAMES T. MALONEY, PC, Richmond,
Virginia, for Appellant.
Donald Eldridge Jeffrey, III, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
ON BRIEF: Mark R. Herring, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 2 of 21

PER CURIAM:
Clifton L. Collins (“Appellant”) appeals the district
court’s

order

dismissing

his

petition

for

a

writ

of

habeas

corpus, in which he challenges his convictions for attempted
abduction and use of a firearm in the commission of a felony.
The district court determined that none of Appellant’s claims
merit relief.
We granted a certificate of appealability on two of
Appellant’s
counsel.

claims
Because

that

alleged

Appellant

ineffective

has

not

assistance

demonstrated

of

counsel’s

alleged errors prejudiced him, however, we affirm the dismissal
of Appellant’s petition on the grounds explained below.
I.
A.
Appellant
Carolina.

In

was

2006,

a

bail

Appellant

bondsman
posted

defendant, James Sydnor (“Sydnor”).

licensed

bond

for

in
a

North

criminal

Sydnor failed to appear in

a North Carolina court as required, in violation of his bond.
Upon learning that Sydnor would be attending a funeral
in Mecklenburg County, Virginia, Appellant traveled to Virginia
in March 2007 with the intent to apprehend Sydnor.

Appellant

was not licensed as either a bail bondsman or bail enforcement
agent

in

Virginia.

When

he

arrived

in

Mecklenburg

County,

Appellant sought the assistance of the local deputy sheriff in
2

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

arresting Sydnor.

Pg: 3 of 21

However, the sheriff’s department declined to

get involved in the absence of an extradition request from North
Carolina.
At the funeral, Appellant approached Cleveland Spruill
(“Spruill”), who Appellant thought was Sydnor.

In fact, Spruill

was Sydnor’s cousin who had a familial resemblance to Sydnor.
Appellant

blocked

toward him.

Spruill’s

car

with

his

and

advanced

Appellant pointed a gun at Spruill and muttered, “I

believe you see what it is motherfuck.”
Collins

truck

v.

Commonwealth,

720

S.E.2d

J.A. 103; 1 see also

530,

531

(Va.

2012).

Assuming that he was being robbed, Spruill stated that he had no
money, to which Appellant responded, “[T]his ain’t about money.”
J.A. 103; Collins, 720 S.E.2d at 531.
Appellant then grabbed Spruill’s shoulder and pulled
him

toward

the

identification,

truck.

and

Spruill

Appellant
showed

asked

Appellant

license, which confirmed that he was not Sydnor.
Appellant

immediately

drove

off,

and

Spruill

Spruill
his

for

driver’s

At that point,
reported

the

incident to local law enforcement.
The State of Virginia charged Appellant with attempted
abduction and use of a firearm in the commission of attempted

1

Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

3

Appeal: 14-7082

Doc: 34

abduction.

Filed: 03/22/2016

Pg: 4 of 21

Following a bench trial, the state court adjudged

Appellant

guilty

of

attempted

abduction

pursuant

to

sections 18.2–26 and 18.2–47 of the Code of Virginia, and use of
a firearm in the commission of a felony pursuant to section
18.2–53.1 of the Code of Virginia.

Appellant was sentenced to a

term of five years of imprisonment on the attempted abduction
charge, all suspended, and to the mandatory term of three years
of imprisonment on the firearm charge.

On February 11, 2015,

Appellant finished serving his term of imprisonment, yet the
five suspended years remain outstanding.
B.
Appellant
Appeals

of

Virginia

appealed
and

the

his

convictions

Supreme

to

Court

of

the

Court

Virginia.

of
On

direct appeal, Appellant raised two arguments: (1) he had the
legal authority under federal common law to attempt to seize
Sydnor, see Taylor v. Taintor, 83 U.S. 366 (1872) (“When bail is
given, the [surety] . . . . may pursue [the principal] into
another State . . . .”); and (2) he did not have the specific
intent to abduct the victim, Spruill, because but for a mistake
of fact, he believed he was seizing Sydnor.
his convictions.

Both courts upheld

See Collins v. Com., 702 S.E.2d 267 (Va. Ct.

App. 2010), aff’d, 720 S.E.2d 530 (Va. 2012).

As to the first

argument, Appellant contended that he had legal justification to
act as an out-of-state bail bondsman under Taylor.
4

But the

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 5 of 21

Supreme Court of Virginia concluded that, by the enactment of
Article

11

(bail

agents)

of

Chapter

(collectively,

bondsmen)
1,

“bail

and

Title

Article

9.1

of

12
the

statutes”), 2

bondsman

(bail

enforcement

Code
the

of

Virginia

Virginia

state

legislature abrogated the federal common law right set forth in
Taylor.

See Collins v. Com., 720 S.E.2d 530 (Va. 2012).
Appellant then filed a state habeas corpus petition

with

the

Supreme

Court

of

Virginia.

There,

he

raised

five

claims: (1) the evidence at trial was insufficient to prove his
intent
because

to

abduct

of

construction

the
of

the

victim;

(2) he

retroactive
Virginia’s

was

application

bail

bondsman

denied
of

due

process

the

court’s

statute;

(3) his

counsel was ineffective for failing to raise this due process
right;

(4) he

was

denied

due

process

because

he

lacked

the

requisite intent to commit abduction; and (5) his counsel was
2

A “bail bondsman” is defined as “any person who is
licensed by the Department [of Criminal Justice Services] who
engages in the business of bail bonding and is thereby
authorized
to
conduct
business
in
all
courts
of
the
Commonwealth.”
Va. Code Ann. § 9.1–185.
Bail enforcement
agents/bounty hunters are “any individual[s] engaged in bail
recovery.”
Va. Code Ann. § 9.1–186.
A nonresident applicant
for a bail bondsman license or bail enforcement license must
meet the same licensing requirements as a resident.
See Va.
Code Ann. §§ 9.1–186.2(B), –186.7. Pursuant to sections 9.1–
185.18 and -186.13 of the Code of Virginia, a person commits a
Class 1 misdemeanor by engaging “in bail bonding for profit or
other consideration without a valid license issued by the
Department [of Criminal Justice Services] in this Commonwealth.”
Va. Code Ann. §§ 9.1-185.18, -186.13.

5

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 6 of 21

ineffective for failing to preserve this argument that Appellant
lacked specific intent to commit abduction.
The

Virginia

court

held

that

the

first

barred from review in a habeas corpus petition.
Clarke, No. 130099, slip op. at 2 (Va. 2013).

claim

was

See Collins v.
Next, the court

held that Appellant’s two due process claims were not preserved
at trial and were, therefore, barred from review.
2-3.

See id. at

Finally, the Supreme Court of Virginia found that the two

ineffective

assistance

claims

satisfied

neither

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

prong

of

See id. at 3-4.

Appellant timely filed a petition for writ of habeas
corpus

in

the

United

States

District

Court

for

the

Eastern

District of Virginia pursuant to 28 U.S.C. § 2254, raising the
following five claims:
(1) Appellant had a legal justification or
excuse for his actions because he was acting
as a bail bondsman or bail enforcement agent
licensed in North Carolina pursuant to his
common law right to recover a principal who
violated a bail contract, which right was
not expressly abrogated by Virginia statute,
and he had contacted local law enforcement
before proceeding to secure the fugitive and
was given express or implied permission;
(2) The
state
appellate
courts
denied
Appellant’s
right
to
due
process
by
retroactively applying Virginia statutory
licensing requirements on bail bondsmen to
limit his common law rights;
(3) Appellant’s counsel was ineffective in
failing
to
argue
that
the
retroactive
6

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 7 of 21

application of the licensing requirements
violated his due process rights;
(4) Appellant’s
conviction
process because he lacked
intent to commit abduction;

violated
due
the requisite

and
(5) Appellant’s counsel was ineffective in
failing to argue that Appellant lacked the
specific intent to commit abduction.
The district court granted the Government’s motion to
dismiss, relying primarily on the reasons articulated in the
decisions by the Supreme Court of Virginia.

See Collins v.

Clarke, No. 3:13-cv-00763-JAG, 2014 WL 2777438 (E.D. Va. June
19, 2014).
and

The district court concluded that the retroactivity

requisite

intent

arguments

were

precluded

because they were not preserved at trial.
Additionally,

the

determinations

by

district
the

court

Supreme

concluded

Court

of

from

review

See id. at *4-5.
that

Virginia

the

-–

legal

that

the

Virginia legislature abrogated the federal common law right of
out-of-state bail bondsman to apprehend fugitive bailees, and no
ineffective assistance existed -- were reasonable.

See id. at

*3, 6-7.
In July 2014, Appellant timely noticed his appeal.

We

issued a certificate of appealability on only two of his claims:
(1) Whether [Appellant’s] trial counsel was
ineffective in failing to preserve for
appeal the issue of whether the retroactive
application of Virginia statutory licensing
7

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 8 of 21

requirements to limit his common law rights
as a bail bondsmen violated his right to due
process; and
(2)
Whether
[Appellant’s]
counsel
was
ineffective in failing to argue at trial and
on
appeal
that
[Appellant]
lacked
the
requisite intent to commit an abduction.
Order at 1, Collins v. Clarke, No. 14-7082 (4th Cir. Feb. 10,
2015), ECF No. 13.
II.
We review de novo a district court’s denial of habeas
relief.

See Lee v. Clarke, 781 F.3d 114, 122 (4th Cir. 2015).
Appellant filed his habeas petition pursuant to the

Antiterrorism Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254(d)(1), which provides,
An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim -(1) resulted in a decision that was
contrary
to,
or
involved
an
unreasonable application of, clearly
established Federal law, as determined
by the Supreme Court of the United
States[.]
28 U.S.C. § 2254(d)(1).
“[A]n
different

from

unreasonable
an

application

incorrect

of

application

Williams v. Taylor, 529 U.S. 362, 410 (2000).
8

of

federal
federal

law

is

law.”

Thus, “a federal

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 9 of 21

habeas court may not issue the writ simply because that court
concludes

in

its

state-court

decision

erroneously

or

independent
applied

judgment

clearly

incorrectly.”

Id.

that

the

established

at

411.

relevant

federal

In

law

determining

whether it was an “unreasonable application,” we inquire as to
whether it was “objectively unreasonable.”
quotation marks omitted).

Id. at 409 (internal

“This is a difficult to meet and

highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of
the doubt.”

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)

(internal citations and quotation marks omitted).
To

prevail

on

an

ineffective

assistance

of

counsel

claim, Appellant must establish that his counsel’s performance
was both deficient and that it prejudiced the outcome.
Strickland,
counsel’s

466

U.S.

conduct

at

“fell

687-88
below

(stating
an

that

objective

one

must

standard

See
show
of

reasonableness,” and “the deficient performance prejudiced the
defense”).

In analyzing counsel’s performance, “a court must

indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is,
the

defendant

must

overcome

the

presumption

that,

under

the

circumstances, the challenged action might be considered sound
trial strategy.”

Id. at 689 (internal quotation marks omitted).

There is a strong presumption that counsel “rendered adequate
9

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 10 of 21

assistance and made all significant decisions in the exercise of
reasonable professional judgment.”

Cullen, 131 S. Ct. at 1403

(quoting Strickland, 466 U.S. at 690).
Even if counsel’s performance was deficient, Appellant
must still show prejudice.

To do so, Appellant must establish

“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.
“sufficient

to

undermine

A reasonable probability is one

confidence

in

the

outcome.”

Id.

Additionally, “[i]n cases where a conviction has been the result
of

a

trial,

counsel’s
would

the

errors,

not

have

(alteration

in

defendant
there

been

is

must
a

reasonable

convicted.”

original)

demonstrate

(internal

Lee,

that

but

probability
781

quotation

F.3d
marks

for

that

at

he

122-23

omitted).

“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”

Strickland, 466

U.S. at 697.
Lastly,

when

an

appellant

raises

a

claim

of

ineffective assistance of counsel, “[t]he AEDPA standard and the
Strickland standard are dual and overlapping, and we apply the
two standards simultaneously rather than sequentially.”

Lee,

781 F.3d at 123 (alteration in original) (quoting Richardson v.
Branker, 668 F.3d 128, 139 (4th Cir. 2012)).
10

“Because both

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 11 of 21

standards of review are highly deferential to the state court’s
adjudication . . ., when the two apply in tandem, the review is
doubly so.”

Id. (alteration in original) (internal quotation

marks omitted).
III.
Appellant asserts that the Supreme Court of Virginia
erroneously

applied

Strickland

v.

Washington,

466

U.S.

668

(1984), because it was unreasonable to conclude that Appellant’s
counsel

was

prejudice

not

when

deficient

or

retroactive

that

Appellant

application

of

did

the

not

bail

suffer

bondsman

statutes or the lack of requisite intent could have excused his
actions.

We address each issue in turn.
A.
Appellant

first

argues

that

the

federal

common

law

established in Taylor v. Taintor, 83 U.S. 366 (1872), validates
his conduct here.
[surety] . . . .
. . . .”).

See id. at 371 (“When bail is given, the
may pursue [the principal] into another State

Against this federal common law backdrop, Appellant

contends that his counsel was ineffective in failing to preserve
for appeal the issue of whether the retroactive application of
the Virginia bail bondsman statutes abrogated Appellant’s common
law rights as a bail bondsman.

Even if Appellant’s counsel was

deficient in this regard, however, Appellant’s argument falters
at

the

second

prong

of

the

Strickland
11

analysis

--

that

is,

Appeal: 14-7082

Doc: 34

Appellant

Filed: 03/22/2016

cannot

demonstrate

Pg: 12 of 21

that

but

for

counsel’s

alleged

errors, the result of Appellant’s proceedings would have been
different.

See Lee v. Clarke, 781 F.3d 114, 122-23 (4th Cir.

2015); see also Strickland, 466 U.S. at 697.
First, to the extent that Appellant challenges whether
the bail bondsman statutes abrogated Taylor, that decision is
best left to Virginia.

See Appellant’s Br. 13-19.

As the

Supreme Court has made clear, “federal habeas corpus relief does
not lie for errors of state law.”

Lewis v. Jeffers, 497 U.S.

764, 780 (1990); see also Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”).
Instead, we limit our review only to the due process
concerns set forth in the certificate of appealability.

See

United States v. Linder, 561 F.3d 339, 344 n.6 (4th Cir. 2009);
see also Order at 1, Collins v. Clarke, No. 14-7082 (4th Cir.
Feb.

10,

2015),

ineffective

ECF

assistance

No.
of

13.

Yet,

counsel

because

argument

Appellant’s

relates

to

the

retroactive application of the bail bondsman statutes, we cannot
ignore the interplay of Taylor and Virginia law.
In support of his argument that his counsel should
have

preserved

the

claim

that

the

Virginia

Supreme

Court’s

retroactive application of the bail bondsman statutes denied him
due process, Appellant relies on Bouie v. City of Columbia, 378
12

Appeal: 14-7082

Doc: 34

U.S. 347 (1964).

Filed: 03/22/2016

Pg: 13 of 21

In that case, the Supreme Court held, “If a

judicial construction of a criminal statute is unexpected and
indefensible by reference to the law which had been expressed
prior to the conduct in issue, it must not be given retroactive
effect.”

Bouie,

378

U.S.

at

354

(internal

quotation

marks

omitted).

To prevail on a Bouie claim, Appellant must establish

that the Virginia bail bondsman statutes were “vague” or that
there was “an unforeseeable and retroactive judicial expansion
of statutory language that appears narrow and precise on its
face.”

Rogers v. Tennessee, 532 U.S. 451, 457 (2001).

Appellant contends only the latter.

Here,

Appellant argues that the

revocation of the out-of-state bail bondsman’s common law right
to apprehend a fugitive was not clear at the time of the conduct
giving rise to his convictions.

Rather, he asserts that such

revocation of the federal common law was made clear for the
first time by the Virginia court rulings in his case.

This

argument is unavailing, and we conclude that the Supreme Court
of Virginia’s decision was reasonable.
1.
First,

the

bail

bondsman

statutes

were

enacted

2004, three years prior to Appellant’s conduct at issue.

in
The

Supreme Court of Virginia concluded that there was no judicial
expansion of the bail bondsman statutes that would have made the

13

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 14 of 21

application of the laws unforeseeable in the circumstance at
hand.
We cannot perceive how the General Assembly
could have more plainly manifested its
intent to abrogate the long standing common
law rule allowing out-of-state bail bondsmen
and bounty hunters to enter Virginia to
apprehend
fugitive
bailees.
It
is
inconceivable
that
the
General
Assembly
intended to impose such strict requirements
upon in-state bail bondsmen and bounty
hunters as those enacted as a result of the
Crime Commission report, yet intended to
leave out-of-staters with the unfettered
right
to
enter
Virginia
and
apprehend
fugitive bailees without being subject to
regulation.
Collins v. Commonwealth, 720 S.E.2d 530, 533 (Va. 2012).
This

determination

is

not

unreasonable.

The

bail

bondsman statutes are unambiguous, and Appellant had fair notice
of what was required under the law.

The retroactivity principle

is grounded in the requirement that a criminal statute afford “a
person

of

contemplated

ordinary
conduct

intelligence
is

forbidden

fair
by

the

States v. Harriss, 347 U.S. 612, 617 (1954).
has

consistently

recognized

“due

process

notice

that

statute.”

his

United

The Supreme Court
bars

courts

from

applying a novel construction of a criminal statute to conduct
that neither the statute nor any prior judicial decision has
fairly disclosed to be within its scope.”
Lanier, 520 U.S. 259, 266 (1997).

United States v.

In order to determine whether

the bail bondsman statutes afford fair notice of the court’s
14

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 15 of 21

statutory interpretation, we look to the language of the statute
and to judicial interpretation of it.

See Bouie, 378 U.S. at

354.
As noted, the bail bondsman statutes were enacted in
2004 by the Virginia General Assembly, nearly three years prior
to

Appellant’s

2007

conduct.

to -185.18, -186 to -186.14.

See

Va.

Code

Ann.

§§ 9.1–185

Pursuant to section 9.1–185.18 of

the Code of Virginia, a person commits a Class 1 misdemeanor by
engaging

“in

bail

bonding

for

profit

or

other

consideration

without a valid license issued by the Department [of Criminal
Justice

Services]

§ 9.1-185.18.
establishes

The

safe

Commonwealth,”
for

this

and

bail

Va.

Justice

Board

qualifications
effective

including
a

Commonwealth.”

Criminal

licensing

responsible,

applicant

in

a

Services
to

bail

enforcement

requirement

enforcement

issues

the

that

license

licensing requirements as a resident.
186.2(B), –186.7.

“ensure

a

must

Code

Ann.

(“Board”)

respectable,
within

the

nonresident

meet

the

same

Va. Code Ann. §§ 9.1–

The Department of Criminal Justice Services

licenses,

in

established by the Board.

conjunction

with

the

regulations

See Va. Code Ann. §§ 9.1-186.3, –

186.5, –186.6(A).
Considering that bail bondsmen, who are licensed in
Virginia

pursuant

to

section

9.1–185,

and

“licensed

bail

enforcement agent[s]” are the only people expressly permitted
15

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 16 of 21

“at any time” to seize their bailees within the Commonwealth,
the legislation expressly provides that only people licensed by
the Commonwealth could engage in bail recovery.
§ 19.2-149.

Va. Code Ann.

Therefore, given that the bail bondsman statutes

clearly dictate the necessary elements for legally engaging in
bail

bonding

activities

in

Virginia,

we

cannot

embrace

Appellant’s argument that he did not have fair notice that his
actions were illegal under Virginia law.
2.
Additionally,

trends

in

other

jurisdictions

are

relevant to determine whether the new rule is “to be unexpected
and

indefensible.”

jurisdictions

have

Rogers,

532

U.S.

at

464.

addressed

the

interaction

Numerous

between

state

statutes regulating bail bondsmen and common law bail bondsmen
rights and have concluded that the state regulations abrogate
conflicting common law rights.

See, e.g., Lund v. Seneca County

Sheriff’s Dep’t, 230 F.3d 196, 198 (6th Cir. 2000); Ouzts v.
Maryland Nat’l Ins. Co., 505 F.2d 547, 551–53 (9th Cir. 1974)
(en banc); Moncrief v. State Comm’r of Ins., 415 So.2d 785, 788
(Fla. Dist. Ct. App. 1982); Walker v. Commonwealth, 127 S.W.3d
596, 606 (Ky. 2004); Commonwealth v. Wilkinson, 613 N.E.2d 914,
917 (Mass. 1993); State v. Epps, 585 P.2d 425, 429 (Or. Ct. App.
1978); Green v. State, 829 S.W.2d 222, 223 (Tex. Crim. App.
1992).

That the Virginia court’s decision adhered to this trend
16

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

is to be expected.
drafted

statute

Pg: 17 of 21

An unsurprising conclusion about a clearly
is

not

the

“unforeseeable . . . judicial

expansion of statutory language” contemplated by Bouie.

Rogers,

532 U.S. at 457.
3.
In sum, Appellant’s Bouie due process argument stood
little chance of success even if it had been properly preserved.
We agree with the Supreme Court of Virginia that, assuming that
the

conduct

of

Appellant’s

counsel

was

deficiency did not prejudice Appellant.
the

court’s

application

of

deficient,

such

Therefore, we conclude

Strickland

with

regard

to

this

contention was reasonable.
B.
Next,

Appellant

contends

that

the

Supreme

Court

of

Virginia unreasonably rejected his argument that his counsel was
ineffective
intent

only

for

failing

to

to

support

a

argue

that

conviction

Appellant

for

acting

“possessed
as

a

bail

recovery agent without a license,” but not the specific intent
to commit abduction.

Appellant’s Br. 30.

Appellant argues the

alleged abduction was merely incidental to his unlicensed bail
bonding activities.

Appellant’s argument is tenuous, at best.

Pursuant to section 18.2–47 of the Code of Virginia, a
person is guilty of abduction when he “by force, intimidation or
deception, and without legal justification or excuse, seizes,
17

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 18 of 21

takes, transports, detains or secretes another person with the
intent to deprive such other person of his personal liberty or
to

withhold

or

conceal

him

from

any

person,

institution lawfully entitled to his charge.”

authority

or

Va. Code Ann.

§ 18.2-47.
When “an offense consist[s] of an act combined with a
particular intent, proof of such intent is as necessary as proof
of the act itself and must be established as a matter of fact.”
Ridley v. Commonwealth, 252 S.E.2d 313, 314 (Va. 1979).

“Intent

in fact is the purpose formed in a person’s mind and may be, and
frequently

is,

shown

by

circumstances[,] . . .

which

shown by a person’s conduct or by his statements.”
Commonwealth, 201 S.E.2d 597, 598 (Va. 1974).

may

be

Hargrave v.

The Supreme Court

of Virginia has opined,
The specific intent to commit [the crime]
may be inferred from the conduct of the
accused if such intent flows naturally from
the conduct proven.
Where the conduct of
the accused under the circumstances involved
points
with
reasonable
certainty
to
a
specific intent to commit [the crime], the
intent element is established.
Wilson

v.

Commonwealth,

(citations omitted).
generally

a

question

452

S.E.2d

669,

674

(Va.

1995)

“[W]hether the required intent exists is
for

the

trier

of

Commonwealth, 238 S.E.2d 808, 810 (Va. 1977).

18

fact.”

Nobles

v.

Appeal: 14-7082

Doc: 34

Here,

Filed: 03/22/2016

it

is

clear

Pg: 19 of 21

that

attempted abduction of Spruill.

Appellant

engaged

in

an

The evidence presented at trial

included Appellant’s use of a firearm, force and threats, and
intimidation to attempt to get another person into his waiting
vehicle.

These factors “all prove beyond a reasonable doubt

that, without legal justification or excuse, [Appellant] seized
another person with the intent to deprive such other person of
his personal liberty.”

Collins, 720 S.E.2d at 534 (internal

alterations and quotation marks omitted).

Appellant’s misguided

belief that he was attempting to abduct his bailee, Sydnor, does
not alter the equation.
In

advancing

his

incidental

conduct

argument,

Appellant relies on Brown v. Commonwealth, 337 S.E.2d 711 (Va.
1985), and Johnson v. Commonwealth, 275 S.E.2d 592 (Va. 1981),
to contend that he lacked the requisite intent to commit the
abduction.

However, Brown is not applicable here.

In Brown,

the defendant was prosecuted for both abduction by detention and
a crime that required restraint of a victim.
at

712.

There,

constituted

the

multiple

defendant
punishments

raised
for

Brown, 337 S.E.2d

whether
the

violation of the Double Jeopardy Clause.

these

same

offense

in

See id. at 712-13.

The Brown court concluded,
We hold . . . that one accused of abduction
by detention and another crime involving
restraint of the victim, both growing out of
19

charges

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 20 of 21

a continuing course of conduct, is subject
upon conviction to separate penalties for
separate offenses only when the detention
committed
in
the
act
of
abduction
is
separate and apart from, and not merely
incidental to, the restraint employed in the
commission of the other crime.
Id. at 713-14; see also Johnson, 275 S.E.2d 592 (finding no
intent

to

abduct

when

defendant’s

furtherance of sexual advances).
a

double

jeopardy

claim,

nor

restraint

was

only

for

an

Here, Appellant raises neither
argument

that

the

attempted

abduction was intrinsic to the act of engaging as an unlicensed
bail recovery agent.

Pursuant to section 9.1-186 of the Code of

Virginia,
“Bail recovery” means an act whereby a
person arrests a bailee with the object of
surrendering the bailee to the appropriate
court, jail, or police department, for the
purpose of discharging the bailee’s surety
from liability on his bond. “Bail recovery”
shall include investigating, surveilling or
locating a bailee in preparation for an
imminent arrest, with such object and for
such purpose.
Va. Code Ann. § 9.1-186.

Thus, by merely engaging in bail

recovery acts -- i.e., pursuing or investigating a bailee in
Virginia -- Appellant violated the licensure statute.

This is

so because even if no attempted abduction took place, Appellant
was

still

in

violation

engaging in bail recovery.

of

the

licensing

requirements

for

Indeed, any licensure violation was

already complete before his attempt to abduct Spruill began.

20

Appeal: 14-7082

Doc: 34

Filed: 03/22/2016

Pg: 21 of 21

The mere fact that Appellant intended to deprive a different
person of his liberty has no bearing on Appellant’s intent to
abduct

some

other

individual

or

his

intent

to

violate

the

licensure statute, and consequently, it was “separate and apart”
from the offense of acting as an unlicensed bail recovery agent.
Brown, 337 S.E.2d at 714.
Ultimately,
deficient,

Appellant

even
has

assuming
not

arguendo

demonstrated

that

counsel

that,

but

was
for

counsel’s alleged failure, the result of the proceeding would
have been different.

Accordingly, we cannot conclude the state

court’s application of Strickland was unreasonable.
IV.
For

the

foregoing

reasons,

the

judgment

of

the

district court is
AFFIRMED.

21