Riddick v. Clark

Filing 15

MEMORANDUM OPINION. Signed by District Judge Gerald Bruce Lee on 1/30/14. (gwalk, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Ronald DeAngelo Riddick,
Petitioner,

)
)

v.

)

Harold W. Clarke,

)
)

)

Respondent.

l:13cv424(GBL/TCB)

)
MEMORANDUM OPINION

This Matter comes before the Court on respondent's Motion to Dismiss this petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed pro se by RonaldDeAngelo Riddick, a

Virginia inmate. Petitioner challenges the constitutionality of his conviction of possession with
intent to distribute heroin following a bench trial in the Circuit Court for the City of Portsmouth.

After respondent moved to dismiss the petition, Riddick was given the opportunity to file
responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d309 (4th Cir. 1975) and Local
Rule 7(K), and he filed a response. After careful consideration, for the reasons that follow,

respondent's Motion to Dismiss will be granted, andthe petition will be dismissed with
prejudice.
I. Background

By final order entered February 18, 2010, Riddick was convicted of possession of heroin
with intent to distribute and received a sentence of twenty (20) years in prison with four (4) years

suspended. Case No. CR09-1576; Resp. Ex. A. The facts underlying the conviction were
described on direct appeal as follow:

Based on information received from a confidential informant, police
obtained a search warrant for appellant's home. As they entered,

appellant was exiting the bathroom where several heroin capsules
were circlingin the toilet and two hundred more capsules lay on the
floor. In all, nearly six hundred capsules of heroin were recovered.
A Portsmouth police officer testified:
Once the Tactical Response Unit secured the
residence, [appellant] was placed in the living room
area of the residence on the couch. I looked at him

and while he was handcuffed, I told him that we

would be going into my officeto talk about the heroin
that was recovered, and at that time he made a

spontaneous statement, 'AH of it is mine.' At that
time I advised him, 'I don't want to talk to you here at

your house. We'll talk at my office.'

Right before trial, appellant moved the court to require the
Commonwealth to disclose the identity ofthe confidential informant.
While the informant had notified police that he had seen heroin and

a firearm in appellant's home, he did not testify at trial. Appellant
also argued his 'All of this is mine' confession should have been
suppressed because he had not received the warning required by
Miranda v. Arizona. 382 U.S. 436 (1966). After denying both

motions and hearingthe evidence, the trial court convicted appellant
of possessing heroin with the intent to distribute.
Riddick v. Commonwealth. R. No. 0406-10-1 (Va. Ct. App. Sept. 2, 2010), slip op. at 1-2; Resp.
Ex. B.

On direct appeal, Riddick argued that: (1) and (2) the trial court erred in denying his
motion to require the Commonwealth to disclose the identity of the confidential informant; and
(3) the trial courterred in denying his motion to suppress his admission that "All of it is mine."

The petition for appeal was denied on September 2,2010. Id. A three-judge panel concurred in
that result on November 23, 2010. Resp. Ex. B. Riddick sought further review by the Supreme

Court of Virginia, but his petition was refused on May 20, 2011, and rehearing was denied on

September 23, 2011. Riddick v. Commonwealth. R. No. 102298 (Va. May 20, 20ll).1
On May 24, 2012, Riddick filed a petition for a state writ ofhabeas corpus in the
Supreme Court ofVirginia, raising the following claims:
A.

There was no probable cause for a warrant to search
his residence based on the information the magistrate
received from the confidential informant.

B.

He received ineffective assistance of counsel in

connection

with

a

Commonwealth to
informant's identity.
C.

motion

to

disclose

the

require

the

confidential

He received ineffective assistance of counsel at the

suppression hearing.
D.

His Fourth Amendment rights were violated when
there was no probable cause to search the residence.

E.

He received ineffective assistance ofcounsel when his

attorney failed to challenge procedures used by the
prosecution to determine that he possessed the drugs
with the intent to sell.

On October 11, 2012, the Supreme Court of Virginia dismissed the petition upon the finding that
the writ should not issue. Riddick v. Dir.. Dep't of Corrections. R. No. 120891 (Va. Oct. 11,
2012); Resp. Ex. C.

Riddick timely filed the instant application for §2254 relief on March 25, 2013,2
reiterating the same claims he raised inhis habeas corpus petition to the Supreme Court of
Virginia. On July 7, 2013, respondent filed a Rule 5 Answer and a Motion to Dismiss, along
"This information was confirmed at the Virginia Courts' Case Information Website.

2For federal purposes, a pleading submitted byanincarcerated litigant is deemed filed when the
pleading isdelivered to prison officials for mailing. Lewis v. Citv ofRichmond Police Dep't. 947
F.2d 733 (4th Cir. 1991): see also Houston v. Lack. 487 U.S. 266 (1988). Pet. at 12.

with a supporting brief and exhibits. Petitioner filed a reply on August 7, 2013, and state court

records were received on January 6, 2014. Accordingly, the petition is now ripe for disposition.
II. Procedural Default

On federal habeas corpus review, a state court's finding of procedural default is entitled

to a presumption of correctness, Clanton v. Muncv. 845 F.2d 1238, 1241 (4th Cir. 1988) (citing
28 U.S.C. § 2254(d)), provided two foundational requirements are met. Harris v. Reed. 489 U.S.

255, 262-63 (1989). First, the state court must have relied explicitly on the procedural ground to
deny petitioner relief. Id. Second, the state procedural rule relied on to default petitioner's claim
must be an independent and adequate state ground for denying relief. Id. at 260; Ford v.

Georgia. 498 U.S. 411, 423-24 (1991). When these two requirements have been met, federal
courts may not review the barred claims absent a showing of cause and prejudice or a
fundamental miscarriage ofjustice, such as actual innocence. Harris. 489 U.S. at 260. Based

upon these principles, petitioner's Claims A (lack of probable cause for the search warrant) and
D (Fourth Amendment violation) are procedurally barred from federal review.
When petitioner raised the substance of Claims A and D in his state habeas corpus

application, the Supreme Court of Virginia expressly found them to defaulted pursuant to
Slavton v. Parrigan. 215 Va. 27, 205 S.E.2d 680 (1974), cert, denied. 419 U.S. 1108 (1975) as

"non-jurisdictional issues [that] could have been raised at trial and on direct appeal and, thus, are
not cognizable in a petition for a writ of habeas corpus." Riddick v. Dir.. supra, slip op. at 1-2.
The Fourth Circuit has consistently held that "the procedural default rule set forth in Slavton
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 Slavton

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barred review of Claims A and D also precludes federal review of those claims. Clanton. 845
F.2datl241.

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. 489 U.S.
at 260. The existence of cause ordinarily turns upon a showing of (1) a denial of effective

assistance of counsel, (2) a factor external to the defense which impeded compliance with the

state procedural rule, or (3) the novelty ofthe claim. See Coleman. 501 U.S. at 753-54; Clozza
v. Murray. 913 F.2d 1092,1104 (4th Cir. 1990); Clanton. 845 F.2d at 1241-42. Importantly, a
court need not consider the issue of prejudice in the absence of cause. Kornahrens v. Evatt. 66
F.3d 1350, 1359 (4th Cir. 1995V cert, denied. 517 U.S. 1171 (1996).

In his Response to Counsel's Motion to Dismiss, petitioner argues that the procedural

default ofthe foregoing claims should beexcused because he is a layman at law and "unfamiliar
with the ... rules of thepleadings." Dkt. 14 at 1. However, theFourth Circuit recognizes that a

litigant's pro se status is insufficient reason to excuse a procedural default. See Hollowav v.
Smith. 81 F.3d 149,1996 WL 160777 at * 1 (4th Cir. Apr 8, 1996) (" Holloway does not meet

the cause and prejudice standard because unfamiliarity with the law and his pro se status do not

constitute adequate justification to excuse his failure to present the claim earlier."); accord.
Forsvthv. Williams. 924 F.2d 1051,1991 WL 10078 (4th Cir. Feb 4,1991) and cases cited at *4.

Therefore, as petitioner has made no showing ofcause and prejudice or a fundamental

miscarriage ofjustice, claims A and D are procedurally barred from consideration on the merits.
III. 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 onthe claim unless the state court's adjudication

is contrary to, oran unreasonable application of, clearly established federal law, orbased on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is

"contrary to" or"anunreasonable application of federal law requires an independent review of
each standard. See Williams v. Tavlor. 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 [theUnited States Supreme] Courthas on a set of materially

indistinguishable facts." IcL 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 [the Supreme] Court's decisions but unreasonably applies that principle to the
facts of theprisoner's case." Id Importantly, this standard of reasonableness is an objective one.
Id at 410. Under this standard, "[t]he focus of federal court review is now on the state court

decision that previously addressed theclaims rather than thepetitioner's free-standing claims
themselves." McLee v. Angelone. 967 F.Supp. 152,156 (E.D. Va. 1997V appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
IV. Analysis

In all of his federally-cognizable claims, petitioner asserts that he received ineffective
assistance of counsel for various reasons. 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 thatcounsel'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 adetermination "must be highly
deferential," with a "strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id at 689; see also. Burket v. Angelone. 208 F.3d 172,189

(4th Cir. 2000) (reviewing court "must be highly deferential in scrutinizing [counsel's]
performance and must filter the distorting effects ofhindsight from [its] analysis"); Spencer v.
Murray. 18 F.3d 229, 233 (4th Cir. 1994) (court must "presume that challenged acts are likely the
result of sound trial strategy").

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

thepossibility of prejudice, but rather "thatthey 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, emphasis original). The two prongs of the

Strickland test are "separate and distinct elements of an ineffective assistance claim," and a

successful petition "must showboth 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. Ouesinberrv v. Taylor. 162 F.3d 273, 278 (4th Cir. 1998).
In claim B, petitionercontends that counsel provided ineffective assistance by failing to

"proffer to the court and prosecution as to why the identification ofthe informant would have
been of assistance to the petitioner's defense." Petitioner argues that counsel only requested the
informant's identity and did not "stress to the court the dire need for the cross-examination,"

which prevented petitioner from learning both "the validity ofthe probable cause for the issuance
of the warrant" and "how the informant came by the information." Pet. Br. at 12. The Supreme

Court of Virginia rejected this contention on the following holding:
In claim (B), petitioner alleges ineffective assistance of counsel
because trial counsel, in arguing his motion to require the
Commonwealth to disclose the identity ofthe confidential informant,

failed to profferwhyhe needed to knowthe confidential informant's
identity and why he needed the opportunity to cross-examine the
confidential informant in court. Specifically, petitioner asserts he had

a right to know how the informant learned petitioner possessed the
narcotics, whether the informant had seen petitioner obtain the
narcotics, and other details of the informant's relationship with
petitioner, and to cross examine the informanton these issues.
The Court holds that claim (B) satisfies neither the 'performance' nor

the 'prejudice' prong of the two-parttest enunciated in Stricklandv.
Washington. 466 U.S. 668, 687 (1984). Under controlling law,

petitionerdid not have a rightto knowhow the informantcameby the
information, nor any right to cross-examine the informant. It is a
'well settled principle that the government is permitted to withhold
the identityof a confidential informant when the informantwas used
only forthe limitedpurposeof obtaining a searchwarrant,' as was the
case here. United States v. Gray. 47 F.3d 1359,1365 (4th Cir. 1995).
Counsel was not ineffective for failing to convince the trial court to

make a contrary ruling. 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 error, the result of the
proceeding would have been different.
Riddick v. Dir., supra, slip op. at 2.

For the reasons which were clearly articulated by the Supreme Court of Virginia,

petitioner has failed to carryhis burden to demonstrate that his attorney's failure to profferthe
8

reason he needed to know the confidential informant's identity and why cross-examination ofthe

informant was imperative amounted to ineffective assistance. It isfirmly established that the

identity ofaperson furnishing the prosecution with information concerning criminal activities is
privileged. Vogel v. Gruaz. 110 U.S. 311, 315-16 (1884). Anarrow exception to that long
standing principle was created in Roviaro v. United States. 353 U.S. 53, 60-61 (1957) "where the
disclosure of an informer's identity ... is relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause." The applicability of the exception depends upon

"the particular circumstances ofeach case." Id at 62. Where an informant actually participates
in the criminal transaction, fundamental fairness mayrequire that the defendant be allowed

access to the informant as a potential witness. Id. at 64. Butwhere, as here, the informant does

nothing more than act as a "tipster" who supplies information for the limited purpose of
obtaining a search warrant, his orher identity is toremain privileged. Gray, 47 F.3d at 1365. In
this case, the informant was not present when drugs were seized from Riddick's home. The

evidence that supported the charge of possession with intent to distribute heroin was the large

quantity ofdrugs found inRiddick's possession coupled with his admission, "All ofit is mine."
Under such circumstances, the Virginia court's determination that counsel's failure to seek the
confidential informant's identityand an opportunity to cross-examine him did not amountto
ineffective assistancewas both factually reasonable and in accord with Strickland, supra.
Therefore, the claim likewise must be rejectedhere. Williams. 529 U.S. at 412-13.

In claim C, petitioner asserts that counsel rendered ineffective assistance by failing to
raise timely objections to leading questions by the prosecutor and hearsay testimony by

prosecution witnesses. On state habeas review, the Supreme Court of Virginia determined that

these arguments were without merit, as follows:

In a portion of claim (C), petitioner alleges ineffective assistance of
counsel because counsel failed to object when the prosecutor asked

Detective McAndrew at the suppression hearing 'what was the basis
forsecuring thatsearch warrant,' and McAndrew replied thathe had
received information from a confidential and reliable informant that

petitioner was selling heroin from his residence. Petitioner argues
McAndrew's testimony was hearsay. Without such directevidence,

petitioner argues, the Commonwealth could not show that the search
warrant was supported by probable cause.

The Court holds that this portion of claim (C) satisfies neither the
'performance' nor the 'prejudice' prong of the two-part test
enunciated in Strickland. The record, including the transcript, shows

that this testimony was not hearsay. It was elicited not for the truth
ofthe matter asserted, but to establish the basis for the search warrant.

Moreover, hearsay isadmissible toestablish probable cause. Counsel
is not ineffective for failing to make a futile objection....

In another portion of claim (C), petitioner alleges ineffective
assistance of counsel because counsel failed to object to a leading

question bythe prosecutor. Petitioner asserts that prosecutor asked
Detective McAndrew if the informant had 'actually indicated to you

that they had personally been in that residence seventy-two hours

prior tothe search warrant onJune 24th and witnessed the heroin and
the firearm?' Detective McAndrew responded,'Yes, sir.' Petitioner
contends 'that the leading question and responses from the witness

have thejury the impression that the witness' was telling the truth.
The Court holds that this portion of claim (C) satisfies neither the
'performance' nor the 'prejudice' prong of the two-part test
enunciated in Strickland. The record demonstrates the hearing was

before the court, not a jury. Thus petitioner did not suffer the

prejudice he claims. Moreover, every fact contained in the
prosecutor's question was in Detective McAndrew' sworn affidavit
which was partof thecourt'srecord. Even a successful objection to
the question would not have altered the outcome of the hearing
because theprosecutor could simply have rephrased thequestion and
elicited the same information from the officer with a series of non-

leading questions or, if necessary, refreshed the officer's recollection
from the search warrant. Counsel is not ineffective for failing to

make a futile objection. Thus, petitioner has failed to demonstrate
10

Riddick v. Dir.. supra, slip op. at 3-4.

Forthe reasons which were clearly explained by the Supreme Court of Virginia,

petitioner has failed to carry his burden to demonstrate that his attorney's performance with
respect to Detective McAndrew's testimony at the suppression hearing (T. 12/17/09 at pp. 6-15)
amounted to ineffective assistance. Because that determination was both factually reasonable

and in accord with Strickland, supra, the same result must bereached here. Williams, 529 U.S.
at 412-13.

Inclaim E, Riddick contends that he received ineffective assistance of counsel when his

attorney failed to challenge procedures used by the prosecution to determine that he possessed
the drugs with the intent to sell. This argument was rejected by the Supreme Court ofVirginia or
the following reasons:

In claim (E), petitioner alleges ineffective assistance of counsel
because counsel failed to challenge the procedures used by the

prosecution to determine that the drugs seized were possessed with
the intent to distribute. Petitioner asserts that only the actual amount

ofdrugs that were tested and confirmed should have been introduced
at his trial and that counsel failed to object to the introduction in

evidence of the capsules of 'alleged heroin.' Counsel also failed to
object totheintroduction ofitems of'alleged paraphernalia' that were
never analyzed.

The Courtholds that claim(E) satisfiesneitherthe 'performance' nor

the 'prejudice' prong of the two-part test enunciated in Strickland.
Therecord, including thetrial transcript, shows counsel didchallenge
the testing procedures. Counsel argued to the trial court that onlya
small percentage of the capsules had been tested, creating a
reasonable doubt as to petitioner's intent to distribute. The court
rejected counsel's argument. Moreover, counsel did object to the
introduction of items of 'alleged paraphernalia'

and the

Commonwealth withdrew the evidence. Thus, Petitioner has failed

to demonstratethat counsel's performnace was deficient or that there
is a reasonable probability that, but for counsel's alleged errors, the
11

Again, for the reasons which are clearly stated in the foregoing opinion by the Supreme
Court ofVirginia, petitioner has failed to carry his burden to demonstrate that his attorney's

efforts to challenge the drugs that were seized from his residence amounted to ineffective
assistance. Review of the trial transcript reveals that, asthe Virginia court determined, counsel

did challenge the testing procedures and succeeded in having the Commonwealth withdraw
evidence ofdrug paraphernalia. Therefore, that Court's rejection ofclaim Ewas both factually
reasonable and in accord with Strickland, supra, and theclaim likewise must fail here. Williams,
529 U.S. at 412-13.
V. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss this petition for habeas corpus

relief will be granted, and the petition will be dismissed with prejudice. An appropriate Order
shall issue.

Entered this V^

dav of Jpr <//&*,
/^<//^4

dav of

2014

/s/
Gerald Bruce Lee

Alexandria, Virginia

United States District Judge

12