Rooks v. Pearson

Filing 21

MEMORANDUM OPINION - this petition will be dismissed, with prejudice. Order to follow. Signed by District Judge Claude M. Hilton on 11/10/2014. (gwalk, )

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

Alexandria Division

Khayr Rooks,
Petitioner,

V.
Eddie L. Pearson,
Respondent.

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l:13cv543 (CMHn'RJ)

MEMORANDUM OPINION

Khayr Rooks, a Virginia inmate proceeding pro sq, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of his conviction in the
Circuit Court for the City of Newport News, Virginia of robbery and other offenses. On May 5,

2014, Respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief.
Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975), and he filed a reply on May 29,2014. After reviewing
the motions and the relevant state court records, petitioner's claims must be dismissed, for the
reasons that follow.

L Background

On March 3, 2009, after a bench trial, petitioner was found guilty of one count of
conspiracy, one count of wearing a mask in public, one count of burglary, five counts of robbery,

one count of attempted robbery, and six counts of use of a firearm during the commission of a
felony in the Circuit Court for the City of Newport News. Commonwealth v. Rooks. Case Nos.

07-61771,61773 through 61775, 07-6177 through 61782,07-61785,61788, 61789, 61859. The
court sentenced him to ninety-eight years' incarceration, with seventy years suspended, as well

as one year of supervised release. Petitionerpursued a direct appeal to the Court of Appeals of

Virginia challenging (1) the sufficiency of the evidence supporting his convictions; and (2) the
trial court's finding that it lacked discretion to sentence him to the three-year mandatory
minimum for a first offense on all six of his firearm counts, rather than the five-year minimum

for subsequent offenses. The Court of Appeals denied the petition for appeal on August 5, 2009,
and a three-judge panel denied rehearing on December 16,2009. Rooks v. Commonwealth. R.

No. 0502-09-1 (Va. Ct. App. 2009). On June 11, 2010, the Supreme Court of Virginia denied
petitioner's petition for appeal. Rooks v. Commonwealth. R. No. 092516 (Va. 2010).

On June 8, 2011, petitioner filed a petition for writ of habeas corpus in the Circuit Court

for the City of Newport News, claiming that (1) trial counsel was ineffective for failing to object
to the use of a firearm, as no "firearm" was actually used; (2) trial counsel was ineffective for

failing to object to the charging of multiple, rather a single, use of a firearm charges; (3)
appellate counsel was ineffective for not presenting his arguments as based on both state law and
the Constitution; and (4) the trial court erroneously concluded that it lacked discretion to

construe each firearms charge as a first offense under the Virginia Code.' On May 29,2012, the
court dismissed the petition. Rooks v. Dir.. Deo't of Corr.. Case No.CRl 1HO1028-00.
Petitioner appealed to the Supreme Court of Virginia, which refused his appeal on January 29,
2013. Rooks V. Pearson. R. 121465. Petitioner then filed the instant federal habeas corpus
petition on May 1, 2013, raising the following claims:
(1) Trial counsel was ineffective for failing to object to the charges of use of a
firearm in the commission of a felony, as there were no "firearms" present during
the commission of the underlying crimes.
(2) Trial counsel was ineffective for failing to object to the charging of
"multiplicious," rather than a single, use of a firearm in commission of a felony
charges.

' In itsopinion, the Circuit Court for the City of Newport News labeled petitioner's claims as
(A)-(D). For consistency, the Court adopts the petitioner's use of numbers, rather than letters.

(3) The trial court erred in concluding that it lacked the discretion to treat each
charge of use of a firearm in the commission of a felony as an initial offense, and
sentence petitioner to the mandatory minimum for a first offense.

Respondent filed a motion to dismiss petitioner's claims on May 5,2104, Petitioner filed
a reply on May 29, 2014. Based on the pleadings and state court records before this Court, it is
uncontested that petitioner exhausted all of his claims before the Supreme Court of Virginia, as
required by 28 U.S.C. § 2254. Accordingly, this matter is now ripe for review on the merits.
II. Standard of Review

When a state court has addressed the merits of a claim raised in a federal habeas corpus

petition, a federal court may not grant the petition on that particular claim imless the state court's

adjudications were contrary to, or an unreasonable application of, clearly established federal law,
or were based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The

evaluation of whether a state court decision is "contrary to" or "an unreasonable application of

federal law is based on an independent review of each standard. ^

Terry Williams v. Taylor.

529 U.S. 362,412-13 (2000). A state court determination violates 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 [the United States Supreme]
Court has on a set of materially indistinguishable facts." Id. 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 the prisoner's
case." Id. Importantly, this standard of reasonableness is an objective one, and does not allow a
federal court to review simply for plain error. Id at 409-10; ^

also Lockver v. Andrade. 538

U.S. 63, 75 (2003). In addition, a federal court should review the state court determinations with

deference; the court cannot grant the writ simply because it concludes that the state court
incorrectly determined the legal standard.

Woodford v. Visciotti. 537 U.S. 19, 24-25 (2002)

(internal citations omitted). A federal court reviewing a habeas petition "presume[s] the [state]
court's factual findings to be sound unless [petitioner] rebuts 'the presumption of correctness by
clear and convincing evidence.'" Miller-El v. Dretke. 545 U.S. 231,240 (2005) (quoting 28
U.S.C. 2254(e)(1)); s^,

Lenzv. Washington. 444 F,3d 295, 300-01 (4th Cir. 2006).
in. Analysis

A.

Ground One

In his first ground for relief, petitioner argues that his trial counsel was ineffective for

failing to challenge the "fraudulent firearm offenses" with which petitioner was charged. Pet.
Att. 1-2. He states that the evidence presented at trial showed that the "firearms" used in the
underlying felonies were actually air-soft guns, and that the witnesses knew that such weapons
were not actually firearms. Id. 1. The Circuit Court for the City of Newport News rejected this

claim on the merits, and the circuit court's reasoning is imputed to the Supreme Court of
Virginia, which refiised the appeal without explanation. S^ Ylst v. Nunnemaker. 501 U.S. 797,

803 (1991). Specifically, the Circuit Court dismissed the claim as failing to satisfy the standard
for ineffective assistance of counsel articulated in Strickland v. Washington. 466 U.S. 668

(1984). See Rooks v. Dir.. Dep't of Corr.. Case No. CRl 1HOI028-00, at 19. In reviewing the
state court's decision as to Ground One, the state court's conclusion was not contrary to, or an

unreasonable application of, clearly established federal law, nor did it involve an unreasonable
determination of the facts.

To prevail on an ineffective assistance of counsel claim, petitioner must meet the two-

pronged test established in Strickland v. Washington. 466 U.S. 668 (1984). Under this test,

petitioner must prove both that his attorney's performance was so deficient "that counsel was not

functioning as the 'counsel' guaranteed by the Sixth Amendment," and that this performance
prejudiced the outcome of petitioner's trial. Strickland. 466 U.S. at 687. To meet the second
prong, petitioner must show that there is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id at 694. A

court reviewing a claim of ineffective assistance of counsel must presume that counsel acted
competently, and should determine the merits of the claim based on the information available to
the attorney at the time of the trial. See, e.g.. Bell v. Cone. 535 U.S. 685, 695 (2002); Burket_v^
Aneelone. 208 F.3d 172,189 (4th Cir. 2000).

The Circuit Court for the City of Newport News found that petitioner failed to meet his
burden on either prong of the Strickland test. Specifically, the court concluded that any

objection made by counsel to the charges of use of a firearm in the commission of a felony
would have been futile, as the Supreme Court of Virginia has held that "a firearm need not be
capable of firing a projectile of any type to constitute a firearm for purposes of a violation of [the
Virginia Code]." Rooks v. Dir.. Dep't of Corr.. Case No. CRl 1HO1028-00. at H9. Relying on
Correll v. Commonwealth. 232 Va. 454, 470, 352 S.E.2d 352, 361 (1987), the court held that

counsel's performance was not ineffective for failing to make a futile objection. In addition, the
court found that petitioner could not prove that his trial would have had a different outcome if
counsel had acted differently. Id. As nothing in this analysis by the Circuit Court of Newport

News is factually unreasonable or contrary to or an unreasonable application of established
federal law, Ground One must be dismissed.
B.

Ground Two

Petitioner's second ground for relief is his argument that trial counsel was ineffective for

failing to object to petitioner's indictment, conviction, and sentencing for multiple charges of use
of a firearm during the commission of a felony. Pet. Att. 3-4. Specifically, he argues that, as the
charges all arose out of one event, the charges should have been reduced to a single use of a
firearm charge, and counsel was negligent for not raising such a challenge. Id. The Circuit
Court for the City of Newport News also rejected this claim on the merits. Specifically, the
Circuit Court dismissed the claim as failing to satisfy the standard for ineffective assistance of
counsel articulated in Strickland. 466 U.S. at 668.

Rooks v. Dir.. Dep't of Corr.. Case No,

CRl 1HOI028-00, at H 10. In reviewing the state court's decision as to Ground Two, the state

court's conclusion was not contrary to, or an unreasonable application of, clearly established
federal law, nor did it involve an unreasonable determination of the facts.

Specifically, the Circuit Court found no merit to petitioner's claim that "as there was one

incident, there should have been only one charge." Id The court found that, because petitioner's
charges involved six victims, each robbed at gunpoint, he was properly charged with six counts
of use of a firearm during the commission of a felony. Therefore, counsel had no reason to

object to the charges, and counsel's performance was not ineffective. Id (citing Correll. 232 Va,

at 470). In addition, the court found that petitioner failed to establish prejudice, as he did not

present evidence that, but for counsel's errors, there was a reasonable probability of a different
outcome at his trial. Id As the court's reasoning is not contrary to, or an unreasonable

application of clearly established federal law. Ground Two must be dismissed.
C. Ground Three

In petitioner's third ground for relief, he argues that the trial court erroneously concluded
that it lacked discretion to classify each of petitioner's charges of use of a firearm during the

commission of a felony as a first offense. Pet. Att. 4-5. He argues that the trial court's error
violated his right to protection fi-om Double Jeopardy under the Fourteenth Amendment. IdL On
direct review, the Court of Appeals of Virginia rejected petitioner's claim on the merits, and
found that the trial court did not err in its sentencing determination.

Rooks v.

Commonwealth. R. No. 050209-01, at *6. The reasoning of the Court of Appeals is imputed to

the Supreme Court of Virginia, which refused the appeal without explanation.

Ylst v.

Nunnemaker. 501 U.S. 797, 803 (1991).

In affirming petitioner's sentence, the Court of Appeals of Virginia relied solely on state
law precedent. S^ Rooks v. Commonwealth. R. No. 050209-01, at *4-*6. This Court does not

have the power to review the Virginia courts' determination of Virginia law, and cannot provide
federal habeas corpus relief when a petitioner alleges that a state court incorrectly applied state
law. See, e.g.. Estelle v. McGuire. 560 U.S. 62, 67 (1991) (internal quotations omitted)
("Federal habeas corpus relief does not lie for errors of state law."); Lawrence v. Baker. 517 F.3d

700, 717 (4th Cir. 2008). A claim of alleged error in a state court sentencing proceeding raises

only issues of state law, and is thus not cognizable in a § 2254 petition, even when the claim is
"couched in terms of equal protection and due process." Branan v. Booth. 861 F.2d 1057,1508
(11th Cir. 1988) (internal citations omitted). Therefore, petitioner's claim that the Circuit Court

for the City of Newport News abused its discretion in sentencing fails to state a ground for
federal habeas corpus relief, and Ground Three must be dismissed.

Because nothing in the state court records indicates that the decision of the Supreme
Court of Virginia was contrary to, or an unreasonable application of, clearly established federal
law, or involved an unreasonable determination of the facts, all three of petitioner's grounds for
relief will be dismissed.

VI. Conclusion

For the above stated reasons, this petition will be dismissed, with prejudice. An
appropriate Order shall issue.

Entered this /O

dayof

2014.

United States District Judge

Alexandria, Virginia