Pendergrass v. Barksdale

Filing 22

MEMORANDUM OPINION in re 13 Motion to Dismiss. Signed by District Judge Leonie M. Brinkema on 08/13/2014. (jlan)

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

Steven Pendergrass,

)

Petitioner,

)
)

v.

)

Warden Barksdale,
Respondent.

l:14cv358(LMB/TCB)

)
)
)
MEMORANDUM OPINION

Steven Pendergrass, a Virginia inmate proceeding rjro se, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of
possession of a firearm by a convicted felon in the Circuit Court of the City of Norfolk. On May

28, 2014, respondent filed a Rule 5 Answer and Motion to Dismiss with a supporting brief and
exhibits, and provided petitioner with the notice required by Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975) and Local Rule 7K. Petitioner submitted a reply brief on June 12, 2014, and

complete state court records were received on July 23, 2014. Accordingly, the matter is now ripe

for disposition. After careful consideration, respondent's Motion to Dismiss will be granted, and
the petition will be dismissed with prejudice.
I. Background

Following a jury trial, petitioner was convicted of possession of a firearm by a convicted

felon and sentenced to five years imprisonment. Case No. CR11001762-01. The facts underlying
the conviction were described by the Court of Appeals of Virginia as follow:

[OJn the evening of November 27, 2010, Officer Chad Beale
responded to a call regarding a man with a gun. Beale arrived at the

scene within minutes of receiving the call. There, he observed three
men on the street, one of whom matched the description the officer
received from his dispatcher. Beale parked his vehicle in front ofthe
men and approached as the men began to walk away. Beale asked to
speak with appellant. Appellant turned and Beale saw him withdraw
a black handgun from the waistband of his pants and throw the
weapon into a bush in front of him. Beale stood approximately ten to
fifteen feet from appellant. Beale ordered appellant and the other two
men to the ground and waited for backup officers to arrive. After
other officers arrived, Beale located the weapon in the bush and
secured it.

Pendergrass v. Commonwealth, R. No. 0418-12-1 (Va. Ct. App. Sep. 13, 2012); Resp. Ex. 1. On
direct appeal, petitioner raised the sole claim that the evidence was insufficient to sustain the
conviction, and the petition for appeal was denied on September 13, 2012. Id. The Supreme
Court of Virginia refused a petition for further review on March 25, 2013. Pendergrass v.

Commonwealth. R. No. 121745 (Va. Mar. 25, 2013); Resp. Ex. 4.

On September 4, 2013, petitioner filed an application for a state writ of habeas corpus in
the trial court, raising the following claims:
A.

The evidence was insufficient to show that he

constructively possessed the firearm.
B.

His right to due process was violated where:
(1) He was denied a copy of his trial transcript;
(2) He was denied a fair trial;
(3) The charge was unlawfully amended;
(4) A 911 tape was admitted improperly; and
(5) The judge was guilty of misconduct.

C.

(1) He did not receive Miranda warnings.

(2) His rights under the Confrontation Clause were
violated when the 911 recording was admitted at
trial.

(3) The evidence was insufficient.
D.

(1) He was denied a fair trial.
(2) He received ineffective assistance of counsel
where his attorney failed to''raise pertinent issues at
trial."

By Order dated September 26, 2013, the trial court found that claims A, B, C and D(l)

could have been raised at trial or on direct appeal, and hence were barred from habeas corpus
review by Slavton v. Parrigan, 217 Va. 27, 205 S.E.2d 680 (1974). Case No. CL13-6712; Resp.
Ex. 6. The court also determined that claim D(2) should be dismissed on the merits because

petitioner had not shown that his attorney was ineffective under the criteria set forth in Strickland
v. Washington, 466 U.S. 668 (1986). ]± at 2. When petitioner attempted to appeal the trial

court's decision to the Supreme Court of Virginia, his application for review was dismissed
pursuant to Rule 5:17(a)(1) on the holding that "appellant failed to timely file the petition for
appeal/' Pendergrass v. Barksdale. R. No. 140049 (Va. Feb. 24. 2014); Resp. Ex. 8.

Petitioner timely filed the instant application for § 2254 relief on March 20, 2014.'
Petitioner reiterates the arguments he raised in his state habeas application, with the exception
that he adds three subclaims to his argument that counsel provided ineffective assistance,

specifically by failing to object to admission of the 911 tape, have the gun tested for DNA and
fingerprints, and provide petitioner with a copy of the trial transcript. As noted above,
'For federal purposes, a pleading submitted by an incarcerated litigant generally is deemed filed
when the pleading is delivered to prison officials for mailing. Lewis v. City of Richmond Police
Dep't. 947 F.2d 733 (4th Cir. 19911: see also Houston v. Lack. 487 U.S. 266 (1988). Pet. at 15.

respondent has filed a Rule 5 Answer and a Motion to Dismiss, along with a supporting brief and
exhibits, and petitioner has filed a reply with additional exhibits. Accordingly, the matter is nowripe for disposition.
II. Exhaustion and Procedural Bar

Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in
the appropriate state court. See 28 U.S.C, § 2254(b); Granberrv v Greer, 481 U.S. 129 (1987);
Rose v. Lundv. 455 U.S. 509 (1982); Preiser v. Rodriguez. 411 U.S. 475 (1973). To comply
with the exhaustion requirement, a state prisoner "must give the state courts one full opportunity
to resolve any constitutional issues by invoking one complete round of the State's established

appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Thus, a petitioner
convicted in Virginia must first have presented the same factual and legal claims raised in his §
2254 application to the Supreme Court of Virginia on direct appeal, or in a state habeas corpus
petition. See, e.g., Duncan v. Henry. 513 U.S. 364 (1995). In addition, in order to preserve the

right to federal collateral review, a petitioner must have fairly presented to the state courts a
claim that his federal rights were violated. Id. at 365.

Here, all of petitioner's claims were presented to the Supreme Court of Virginia with the

exception of the three subclaims of ineffective assistance of counsel he raises for the first time in
this federal proceeding. As to those arguments - that counsel failed to object to admission of the

911 tape, have the gun tested for DNA and fingerprints, and provide petitioner with a copy of the

trial transcript - "[a] claim that has not been presented to the highest state court nevertheless may
be treated as exhausted if it is clear that the claim would be procedurally barred under state law if

the petitioner attempted to present it to the state court." Baker v. Corcoran. 220 F.3d 276, 288

(4th Cir. 2000) (citing Gray v. Netherland, 518 U.S. 152. 161 (1996)). Importantly, "the

procedural bar that gives rise to exhaustion provides an independent and adequate state-law

ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted
claim." Id. (quoting Gray, 518 U.S. at 162). Here, petitioner's unexhausted claims are incapable
of exhaustion, because were they now to be presented to the state courts they would be dismissed

as both untimely, Va. Code § 8.01-654(A)(2), and successive, Va. Code § 8.01-654(B)(2).
Therefore, the three subclaims of ineffective assistance that were raised initially in this action are

simultaneously exhausted and defaulted for purposes of federal habeas review. See Bassette v.
Thompson. 915 F.2d 932 (4th Cir. 1990).

In addition, claims B, C and D(l) are defaulted for two reasons. First, when petitioner
raised these arguments in his state habeas application, the trial court found they were not
cognizable pursuant to Slavton v. Parrigan, supra. A state court's finding of procedural default is
entitled to a presumption of correctness, provided two foundational requirements are met. See 28
U.S.C. § 2254(d); Clanton v. Muncv, 845 F.2d 1238, 1241 (4th Cir. 1988). First, the state court

must explicitly rely on the procedural ground to deny petitioner relief. See Ylst v. Nunnemaker,
501 U.S. 797, 802-03 (1991); Harris v. Reed, 489 U.S. 255, 259 (1989). Second, the state

procedural rule used to default petitioner's claim must be an independent and adequate state

ground for denying relief. See Harris. 489 U.S. at 260; Ford v. Georgia. 498 U.S. 411, 423-24
(1991). The Fourth Circuit has held consistently 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, claims B, C and D(l) likewise are

procedurally defaulted in this federal proceeding.

In addition, when petitioner attempted to appeal the trial court's denial of his state habeas

application to the Supreme Court of Virginia, the appeal was dismissed as untimely pursuant to
Rule 5:17(a)(1). Resp. Ex. 8. Because the reason for dismissing Pendergrass' habeas appeal was
a clearly-stated adequate and independent state ground, federal review of the claims raised in that
appeal is foreclosed. See Spencer v. Murray. 5 F.3d 758. 761 (4th Cir. 1993), cert, denied. 510
U.S. 1171 (1994), and cases cited. That default applies to claims B, .C and D of this federal
petition.
Federal courts may not review procedurally barred claims absent a showing of cause and
prejudice or a fundamental miscarriage of justice, such as actual innocence. Harris v. Reed. 489
U.S. 255, 260 (1989). 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 of the claim. See Coleman, 501 U.S. at 753-54:
Clozzav. Murray, 913 F.2d 1092, 1104 (4th Cir. 1990): Clanton v. Muncv. 845 F.2d 1238, 1241-

42 (4th Cir. 1988). Importantly, a court need not consider the issue of prejudice in the absence of
cause. See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995). cert, denied. 517 U.S. 1171
(1996).

In his Reply Brief/Motion Not Dismiss, petitioner argues that his procedural default of
claims B, C and D should be excused because it resulted from ineffective assistance of counsel,

he did not have a copy of his trial transcript, and he was "transferred back and forth between the
Department of Corrections and the Virginia Beach City Jail" just before his state habeas appeal
was due. Dkt. 13 at 2. None of these circumstances, either alone or in concert, is sufficient to

satisfy the cause and prejudice requirement.

As a general rule, a claim of ineffective representation that has not itself been presented
to and exhausted in the state courts cannot serve as cause for the procedural default of additional
claims. See Murray v. Carrier. 477 U.S. 478, 488-89 (1986); Justus v. Murray. 897 F.2d 709 (4th

Cir. 1990). In addition, in Coleman, 501 U.S. at 754-55, it was established that "an attorney's
ignorance or inadvertence in a post conviction proceeding does not qualify as cause to excuse a
procedural default." A narrow exception to that rule subsequently was announced in Martinez v.

Ryan, 566 U.S. 1, 132 S.Ct. 1309, 1315 (2012), where the Court held that "inadequate assistance
of counsel [or no counsel] at initial review proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance of counsel." The Court defined "initial
review proceedings" as the "collateral proceedings which provide the first occasion to raise a

claim of ineffective assistance at trial." Id. In Virginia, absent circumstances not present here, a
claim of ineffective assistance is appropriately raised in a timely petition for habeas corpus relief.
Johnson v. Commonwealth. 259 Va. 675. 529 S.E.2d 769, 780-81 (2000). Here, Pendergrass
received that review without impediment. Instead, the default occurred in the ensuing appeal to

the Supreme Court of Virginia, when he failed to notice his appeal of the denial of his habeas
corpus application in a timely fashion. Thus, the situation here is controlled by Coleman rather
than Martinez, and petitioner's allegation of ineffective assistance does not overcome the
procedural default of his present claims.

Petitioner's argument that the procedural default should be excused because he delayed

filing his notice of appeal because he was waiting to receive a copy of his trial transcript fares no
better. It is apparent from the record references contained in the briefs filed before the Court of

Appeals and the Virginia Supreme Court that petitioner's counsel had a copy of the transcript.

Resp. Ex. B. Under such circumstances, unless a particularized need is demonstrated, an
indigent defendant is not entitled to be provided with a second transcript copy. See Jones v.
Superintendent, 460 F.2d 150, 152-53 (4th Cir. 1972 ) ("The respondent contends that... the state

may constitutionally decline to furnish an indigent with a transcript until a need for it is shown,
even though the transcript is already in existence. We agree."). In this case, there is no indication
that petitioner made the requisite showing of need to warrant a copy of the transcript; to the
contrary, it is apparent that he could not do so. Petitioner already had presented his claims for
habeas corpus relief to the trial court, and only those same claims could be presented on appeal.
Petitioner cannot explain how he could have been aware of the nature of his claims in the
proceeding before the trial court, and yet have been unable to file a timely notice of appeal before

the appellate court without access to a trial transcript. Similarly. Petitioner's reference to being
"transferred back and forth" between institutions falls short of excusing his procedural default, as
he fails to explain the manner in which that circumstance prevented him from timely noticing an
appeal of the trial court's denial of his habeas application.
In sum, petitioner has failed to demonstrate cause for the procedural default of his claims

before the Supreme Court of Virginia. Cf. Coleman, 501 U.S. at 753-54. As petitioner neither
suggests nor offers evidence sufficient to establish that he is actually innocent of the offense for
which he was convicted, see Schlup v. Delo, 513 U.S. 298, 327 (1995); Royal v. Taylor, 188

F.3d 239, 244 (4th Cir. 1999), claims B, C and D of this petition are procedurally barred from
federal consideration on the merits. See Kornahrens, 66 F.3d at 1359 (4th Cir. 1995) (where no

showing is made of cause for a procedural default, a court need not consider the issue of
prejudice).

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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 on the claim unless the state court's adjudication
is contrary to, or an unreasonable application of, clearly established federal law, or based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is

"contrary to" or "an unreasonable application of federal law requires an independent review of
each standard. See Williams v. Taylor. 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 [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.
Id. at 410. Under this standard, "|t]he focus of federal court review is now on the state court
decision that previously addressed the claims rather than the petitioner's free-standing claims

themselves." McLee v. Angelone. 967 F.Supp. 152, 156 (E.D. Va. 1997), appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
IV. Analysis

In the first claim of this federal petition, which was raised and exhausted on direct appeal,
petitioner argues that the evidence was insufficient to sustain his conviction. When petitioner

challenged the sufficiency of the evidence in state court, the Court of Appeals rejected his

argument on the following holding:

Appellantargues 'the evidencedoes not prove that [he] constructively
possessed the handgun recovered by Officer Beale in a bush.' In fact.
Beale's testimony established appellant actually possessed the
weapon as he saw appellant withdraw it from his pants and then
discard it.

'A conviction for knowingly and intentionally possessing a firearm
after having been convicted of a felony ... requires proof beyond a
reasonable doubt of either actual or constructive possession of the
firearm.' Hancock v. Commonwealth, 21 Va. App. 466, 468, 465
S.E.2dl38, 140(1995).

Appellant asserts that because the Might was very dim,' his 'hand
never rose above waist-level,' and appellant 'was intoxicated,' the
officer's observations were unreliable. The trial court believed

Beale's testimony and rejected appellant's version ofthe events. 'The
credibility of the witnesses and the weight accorded to the evidence
are matters solely for the fact finder who has the opportunity to see
and hear that evidence as it is presented.'
Sandoval v.
Commonwealth. 20 Va. App. 133, 138,455 S.E.2d 730, 732 (1995).
The records supports the trial court's credibility determination.
Beale's testimony demonstrated appellant possessed the weapon. The
Commonwealth's evidence was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable doubt that

appellant was guilty of possession of a firearm by a convicted felon.
Pendergrass. R. No. 0418-12-1 at 2. Because the foregoing order was the last reasoned state
court decision on the claim at issue, its reasoning is imputed to the Supreme Court of Virginia,

which refused further appeal. See Ylst, 501 U.S. at 803.
On federal habeas review, the standard for a claim challenging the sufficiency of the

evidence supporting a state conviction is "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia. 443 U.S. 307, 319 (1979) (emphasis

original). The federal court is required to give deference to findings of fact made by the state
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courts, and this presumption of correctness applies to facts found by both trial and appellate
courts. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 546-47 (1981); see Wilson v.

Greene. 155 F.3d 396, 405-06 (4th Cir. 1998) (citing Wright v. West. 505 U.S. 277, 292 (1992)
for the holding that a federal habeas court is prohibited from either "considering] anew the
jury's guilt determination or "replacing] the state's system of direct appellate review").
Moreover, it is not the role of a federal court to review the credibility of witnesses. United States
v. Hobbs. 136F.3d384, 391 n.ll (4th Cir. 1998); United States v. Reavis, 48 F.3d 763. 771 (4th
Cir. 1995); United States v. Saunders. 886 F.2d 56, 60 (4th Cir. 1989). Instead, the federal court

is bound by credibility determinations made by the state court trier of fact. United States v.

Arlington. 719 F.2d 701, 704 (4th Cir. 1983). In short, the federal court must determine only
whether the trier of fact made a rational decision to convict. Herrera v. Collins. 506 U.S. 390,

402(1993).

In this case, petitioner's argument regarding the sufficiency of the evidence is no more
than an invitation to this Court to re-weigh the evidence in a manner more favorable to him, a

course of action which plainly is prohibited by the foregoing authorities. Specifically, this Court
may not revisit the issue of Officer Beale's credibility in this proceeding. Reavis. 48 F.3d at 771.
For the reasons expressed by the Court of Appeals, it is apparent that a rational trier of fact could

have found Pendergrass guilty of possession of a firearm based on the evidence presented. As
petitioner has failed to satisfy his burden of showing that the rejection of his claim by the

Virginia Court of Appeals was either an unreasonable determination of the facts or an
unreasonable application of federal law, that result must be allowed to stand. Williams, 529 U.S.
at 412-13.

II

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 l_3

day of

I'j-U V^C

2014.

Alexandria, Virginia

l^L
Leonie M. Brinkema

United States District Judge

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