Session v. Virginia Dept. of Corrections

Filing 17

MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 12/21/2016. (dest, ) (c/s)

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Alvin Session,
Petitioner,
V.

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)
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Director, Va. Department of Corrections,
Respondent.

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l:16cv582 (AJT/TCB)

MEMORANDUM OPINION

Alvin Session, a Virginia inmate proceeding pro se, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of convictions
entered in the Circuit Court of the City of Richmond. Case Nos. CR13F02256 - 57. Before this

Court is the respondent's Motion to Dismiss the petition.
L Background

On July 9,2013, a jury found petitioner guilty of robbery and use of a firearm in the
commission of a felony based on the following facts:
[T]he evidence proved that around 3:30 a.m. on July 26,2012, Misa
Brown was walking home when she noticed two men in a white
Buick with no hubcaps staring at her as it circled the block. She lost
sight ofthem momentarily, but encountered the two men - appellant
and a younger individual - on foot as she reached the entrance to her
apartment building. The younger man turned to Brown and said, 'Get
on the ground, bitch.' Brown saw that the younger man had a black
handgun pointed at her head. Appellant was standing slightly behind
and to the side of the younger man. Brown said that she would not
get on the ground, to which the younger man replied, 'You better get
on the ground or I'm goingto shoot you.' Brownagain refusedto get
on the ground. She then saw a car turn onto the street, and she
dropped her purse where she was standing and ran toward the car.
Brown looked back to see if she was followed, and she noticed

appellant bend over to pick up something from the sidewalk. She
could not see what appellant grabbed, but she testified that the only

thing on the ground was her purse. After appellant retrieved the item,
the two men left together, running in the same direction.
Brown called the police and described the two men she had
encountered and what they were wearing, as well as the vehicle they
had been driving. A few minutes after receiving the call. Officer
Virgil Burton of the Richmond Police Department found the white
Buick with no hubcaps within walking distance from the scene ofthe
robbery. Burton stopped the vehicle and detained both men. The
driver surrendered a loaded black firearm upon exiting the vehicle.
The younger man was driving and appellant was in the passenger seat,
and both were wearing clothing that matched the description given by
Brown. Searching the vehicle, Burton recovered Brown's purse from
the passenger floorboard. Brown's credit cards and identification
were still in the purse.
Session v. Commonwealth. R. No. 2459-13-2 (Va. Ct. App. June 26,2014), slip op. at 2-3; Resp.
Ex. 3. Petitioner received a sentence of eleven (11) years imprisonment. Resp. Ex. 1.
Petitioner appealed the convictions to the Court of Appeals of Virginia, arguing that the

trial court erred in denying his motions to strike because the evidence was insufficient to prove
that a robbery occurred and, if it did, that he had committed or aided and abetted the robbery as a
principal or a principal in the second degree. The Court of Appeals concluded that "[t]he record
contains sufficient evidence to support the jury's verdict" and denied the appeal on June 26,

2014. Id

The Supreme Court of Virginia refused petitioner's application for fiirther review on

January 22,2015. Session v. Commonwealth. R. No. 141143 (Va. Jan. 22,2015); Resp. Ex. 4.

On August 3,2015, petitioner filed a petition for a writ of habeas corpus in the Supreme
Court of Virginia, raising the following claims:
1.

The trial proceedings violated his right to a speedy
trial.

2.

His rights to due process and a fair trial were violated
when the prosecution exercised all of its preemptive

strikes against African Americans for reasons that
were not race-neutral.

3.

His right to due process was violated when the court
gave misleading and confusing jury instructions on
the required elements of the offense.

4.

His rights to due process and a fair trial were violated
by the totality of the prosecution's misconduct.

5(a).

He received ineffective assistance ofcounsel when his
attorney failed to properly cross-examine and impeach
the sole witness.

5(b).

He received ineffective assistance ofcounsel when his

attorney failed to properly object to the prosecution's
misconduct.

5(c).

He receivedineffective assistanceofappellate counsel
when his attorney failed to present meritorious issues
on appeal.

The petition was dismissed on March 14,2016. Session v. Director. Dep't of Corrections. R. No.
151201 (Va. Mar. 14,2016); Resp. Ex. 5.

Session then turned to the federal forum and timely filed the instant application for relief
pursuant to §2254 on May 11,2016, reiterating the claims raised in the state direct appeal and
habeas corpus proceedings. On June 28,2016, respondent filed a 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. (Dkt. No. 9-12) Petitioner has filed
no reply. Accordingly, this matter is ripe for disposition.
II. Exhaustion

Before bringing a federal habeas petition, a state prisoner must first exhaust his claims in

the appropriate state court. 28 U.S.C. § 2254(b); Granberrv v Greer. 481 U.S. 129 (1987); Rose

V. Lundv. 455 U.S. 509 (1982). To comply with the exhaustion requirement, a petitioner "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 first must have presented the same

factual and legal claims raised in his federal habeas corpus application to the Supreme Court of
Virginia on direct appeal or in a state habeas corpus petition. See, e.g.. Duncan v. Henrv. 513
U.S. 364 (1995). Respondent acknowledges correctly that petitioner's claims have been
exhausted.
III. Procedural Default

Claims 1 through 4 of this federal petition are procedurally defaulted from federal review.

If a state court finds, based on an adequate and independent state-law ground, that a claim is
procedurally defaulted from review, then the claim is not reviewable in federal habeas. See
Coleman v. Thompson. 501 U.S. 722, 729-30 (1991); Williams v. French. 146 F.3d 203,208-09

(4th Cir. 1998) (internal citations omitted). A state procedural rule is "adequate" if it is

"regularly or consistently applied by the state court," and is "independent" if its application does
not depend on the federal Constitution. Williams. 146 F.3d at 209 (internal citations omitted).
The only exception to this rule is if the petitioner can show cause and prejudice for the default, or
a fundamental miscarriage ofjustice, such as actual innocence. See, e.g.. Harris v. Reed. 489
U.S. 255,262 (1989) (internal citations omitted).

Claims 1 through 4 of this petition, in which petitioner alleges trial court errors, were

originally raised in his state habeas corpus proceeding. In each instance, the Supreme Court of
Virginia determined pursuant to Slavton v. Parrisan. 215 Va. 27,205 S.E.2d 680 (1974) that the

claim was barred because it was a non-jurisdictional issue that could have been raised on direct
appeal and hence was not cognizable in a habeas corpus proceeding. Session v. Dir.. supra, slip
op. at 1-2. 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). Thus, as petitioner has made no showing of cause

and prejudice or a fundamental miscarriage ofjustice, claims 1 through 4 are procedurally barred
from federal consideration.
IV. Merits

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. S^ Williams v. Tavlor. 529 U.S. 362,412-13 (2000). A state court's

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."

at 413. Under the "unreasonable application" clause, the writ should

be granted ifthe 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. Aneelone. 967 F.Supp. 152,156 (E.D. Va. 1997). appeal dismissed. 139
F.3d 891 (4th Cir. 1998) (table).
Claim 5

In claim 5 of this petition, petitioner contends that he received ineffective assistance of

counsel at trial and on direct appeal. 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 that

counsel'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 a determination "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. 208 F.3d at 189 (reviewing court "must be highly
deferential in scrutinizing [counsel's] performance and must filter the distorting effects of

hindsight from [its] analysis"); Spencer v. Murrav. 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

the possibility of prejudice, but rather "that they 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 show both 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. Tavlor. 162 F.3d 273,278 (4th Cir. 1998).
Claim 5

In claim 5(a) of this petition, Session argues that trial counsel provided ineffective

assistance by failing to cross-examine and impeach the sole witness effectively. On habeas
corpus review, the Supreme Court of Virginiafound no merit to this position for the following
reasons:

In claim 5(a), petitioner contends he was denied the effective
assistance of trial counsel because coimsel failed to properly crossexamine and impeach the testimony of Misa Brown. Petitioner
alleges Brown's testimony at trial that she saw petitioner 'scoop down
and pick something up' but could not see what he picked up, was
inconsistent with her preliminary hearing testimony when she
testified she did not see 'anything at all because her back was turned
as she ran away.' Petitioner alleges that when counsel attempted to
impeach Brown with her prior testimony, the prosecutor objected,
arguing the prior testimony was not inconsistent, and that instead of
pursuing this line [of] inquiry, counsel acquiesced and ended his
cross-examination.

The Court holds that claim (5)(a) satisfies neither the 'performance'
nor the 'prejudice' prong ofthe two-part test enunciated in Strickland
V. Washington. 466 U.S. 668,687 (1984). Petitioner fails to provide
a transcript of the preliminary hearing or any support for his claim
that Brown testified at the preliminary hearing that she did not see
'anything at all.' The record, including the trial transcript,
demonstrates that the prosecutor asked Brown if she 'looked back'

after the robbery, and she testified that she 'took a look back to make
sure, you know, nobody was running behind me.' She further testified
that when she looked back, she saw Petitioner 'picking up something.
I don't know exactly what it was, but the only thing at the time that
was down there was my pocketbook.' On cross-examination, counsel
proffered that, at the preliminary hearing, he asked Brown if she saw
petitioner pick up her pocketbook and she answered 'no.' Counsel
could reasonably] have determined the preliminary hearing
testimony he proffered was not inconsistent with Brown's trial
testimony and decided the best course of action was to move on to
another issue. Moreover, even ifcounsel successfully demonstrated
that Brown did not see petitioner pick up anything, the evidence
established petitioner participated in the robbery of Brown as a
principal in the second degree or an aider and abettor to the
commission of a crime.

'[T]o establish the defendant as an aider and abettor, he must be
present and shown to have procured, encouraged, countenanced or
approved commission ofthe crime; he must share the criminal intent
of the actual perpetrator or be guilty of some overt act.' Hall v.
Commonwealth. 225 Va. 533,536,303 S.E.2d 903,904 (1983). The
record, including the trial transcript, demonstrates that the codefendant and petitioner, the driver and passenger ofa vehicle, looked
at Brown as she was standing on a comer in the early morning. The
manner in which they looked at Brown concerned her and caused her
to walk back to her apartment. As she walked, she noticed petitioner
and the co-defendant circle around her in their car then approach her
on foot. Petitioner stood right behind and to the side of the codefendant as the co-defendant pointed a gun at Brown's head and
demanded she get on the ground. Brovm dropped her pocketbook and
ran. Shortly afterwards, the police stopped a vehicle matching the
description given by Brown and found petitioner and his codefendant. Brown's pocketbook was found on the floorboard on the
passenger side where petitioner had been sitting. 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 errors,
the result of the proceeding would have been different.

Session v. Dir.. supra, slip op. at 2-3. For the reasons which are thoroughly expressed in the
foregoing order, the Supreme Court of Virginia's rejection of petitioner's present claim was

neither contraryto the clearly establishedfederal law upon which it expresslyrelied nor based on

8

an unreasonable determination of the facts. Accordingly, the same result is compelled here. See
Williams. 529 U.S. at 412-13.

In claim 5(b), Session contends that he received ineffective assistance of counsel when

his attorney failed properly to object to the prosecution's misconduct. The Supreme Court of
Virginia rejected this argument for the following reasons:

In a portion of claim 5(b), petitioner contends he was denied the
effective assistance of trial counsel when counsel failed to properly
object during closing argument when the prosecutor improperly
claimed 'we can presume [petitioner] took [Brown's pocketbook],'
and that petitioner was the person with the co-defendant who 'saw
[Brown], [and] chased her.'
The Court holds that this portion of claim (5)(b) satisfies neither the
'performance' nor the 'prejudice' prong of the two-part test
enunciated in Strickland. The record, including the trial transcript,
demonstrates the prosecutor did make the arguments petitioner
claims. Counsel could reasonably have determined, however, these

arguments were reasonable inferences from the facts of the case and
any objection would have been meritless. '[T]he purpose of closing
argument is to draw the jury's attention to the body of evidence that
has been admitted into the record and to argue reasonable inferences
that may be drawn from that evidence.' Wakole v. Barber. 283 Va.
488,492, 722 S.E.2d 238,240 (2012). 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 errors, the

result of the proceeding would have been different.
In another portion of claim 5(b), petitioner contends he was denied
the effective assistance of trial counsel when counsel failed to

properly object during rebuttal argument when the prosecutor
incorrectly informed the jury that they should 'reward the good, hard
police work and stand up for the victim in this case, for what she had
to go through.'

The Court holds that this portion of claim (5)(b) fails to satisfy the
'prejudice' prong of the two-part test enunciatedin Strickland. 'An
error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.' Strickland. 466 U.S. at 691.

'[T]he question is whether there is a reasonable probability that,
absent the errors, the fact finder would have had a reasonable doubt

respecting guih.' Id at 687. Here, the record, including the trial
transcript, demonstrates that Brown identified petitioner as the man
who stood 'right behind [the co-defendant] but to the side where he
could see everything' as the co-defendant held a gun to Brown's head
and told her to get on the ground. Moreover, petitioner and the codefendant were apprehended by the police shortly after the crime in
the same vehicle described by Brown. After police ordered petitioner
out of the passenger side of the vehicle. Brown's pocketbook was
recovered from the floorboard on the passenger side where petitioner
had been sitting. 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 errors, the result of the
proceeding would have been different.
In another portion of claim 5(b), petitioner contends he was denied
the effective assistance oftrial counsel when counsel failed to object
during rebuttal argument when the prosecutor alluded to the fact that
the co-defendant was petitioner's nephew, thus giving the impression
that the co-defendant would look to the petitioner for guidance.
The Court holds that this portion of claim (5)(b) satisfies neither the
'performance' nor the 'prejudice' prong of the two-part test
enunciated in Strickland. The record, including the trial transcript,
demonstrates counsel did object to the prosecutor's statement that the
co-defendant was petitioner's nephew on the grounds that 'there's
been no evidence of that.' The record ftirther demonstrates that the

trial court ruled it did not know if that fact was in evidence, 'so it's

up to the jury [to remember what was said] and that's why I told the
jury to pay attention.' 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 errors, the resuh of the
proceeding would have been different.

Session v. Dir.. supra, slip op. at 3-5. For the reasons which are cogentlystated in the foregoing
order, the Supreme Court of Virginia's rejection of petitioner's claim 5(b) was neither contrary to

clearly established federal law nor based on an unreasonable determination of the facts.
Accordingly, that result must not be disturbed. S^ Williams. 529 U.S. at 412-13.

In claim 5(c), of his petition. Session asserts that he received ineffective assistance of
10

appellate counsel when his attorney failed to present meritorious issues on appeal. The Supreme
Court of Virginia found no merit to this argument, as follows:

The Court holds that claim (5)(c) satisfies neither the 'performance'
nor the 'prejudice' prong ofthe two-part test enunciated in Strickland.
The selection ofissues to address on appeal is left to the discretion of
appellate counsel, and counsel need not address every possible issue
on appeal. Jones v. Barnes. 463 U.S. 745, 751-52 (1983). 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 errors, the result ofthe proceeding would have been
different.

Session v. Dir.. supra, slip op. at 5.

As the Virginia court acknowledged, the Strickland analysis applies to claims of

ineffective assistance on appeal as well as at trial. Matire v. Wainwright. 811 F.2d 1430,1435
(11th Cir. 1987). Because "appellate counsel is given wide latitude to develop a strategy," Lovitt
V. Anselone. 208 F.3d 172,189 (2000), appellate counsel is not required to assert every

conceivable claim on appeal, and counsel's choice of which appellate issues to pursue is virtually
unassailable. Jones. 463 U.S. at 751-52. Here, there has been no showing that appellate

counsel's representation satisfies either prong of the Strickland analysis. Accordingly, the

Supreme Court of Virginia's rejection of Claim 5(c) was factually reasonable and in accord with
applicable federal principles, Strickland, supra, and that same result must be reached here.
Williams. 529 U.S. at 412-13.

Claim 6

In Claim 6 ofthis petition. Sessionarguesas he did on direct appeal that the evidence was

insufficient to sustain his robbeiy conviction, because he was not a principal in the first or second

degree. After outlining the evidence presented at trial as quoted above, the Court of Appeals of

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Virginia rejected petitioner's argument on the following holding:'
'A conviction for robbery requires proof beyond a reasonable doubt
that the defendant alone, or acting in concert with others, took
property from the victim by force, threats, or violence, and that the
intent to steal co-existed with the force. Pugliese v. Commonwealths

16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993) (emphasis added)
rciting Pierce v. Commonwealth. 205 Va. App., 528,532,138 S.E.2d
28, 31 (1964)). While mere presence at the scene of a crime is
insufficient,

proof that a person is present at the commission of a
crime without disapprovingor opposing it, is evidence
from which, in connection with other circumstances,

it is competent for the [fact fmder] to infer that he
assented thereto, lent to it his countenance and

approval, and was thereby aiding and abetting the
same.

Id. at 93-94,428 S.E.2d at 25. One who aids and abets a robbery is
'liable as a principal.' Pierce. 205 Va. at 534,138 S.E.2d at 32. 'In
Virginia, a perpetrator and principal in the second degree are equally
liable for the crime[] of robbery.' Pugliese. 16 Va. App., at 93,428
S.E.2d at 24 (citing Code § 18,2-18).

In denying appellant's motion to strike, the trial court emphasized
that the circumstances are not to be viewed as a 'snapshot in time'

where appellant would simply be standing in the presence of a
robbery, but that all the circumstances must be viewed as a whole.
This includes testimony regarding appellant's conduct before, during
and after the robbery: staring at and seeking out the victim, reaching
down to pick up the purse, fleeing at the same time and in the same
direction as the younger man, and being found a few minutes later in
the same car with the victim's purse at his feet. The witnesses'

testimonyprovidedcredibleevidencefor the record. Based on all the
circumstances presented, we cannot say that the evidence was
insufficient as a matter oflaw to sustain a conviction for robbery. As

such, the trial court did not err in denying appellant's motions to

'Because the Supreme Court ofVirginia refused further review ofthispoint without explanation,
the reasoning ofthe Court ofAppeals is imputed to it. See Ylst v.Nurmemaken 501 U.S. 797,803
(1991).

12

strike and submitted the case to the jury. A jury's verdict will not be
disturbed unless it was plainly wrong or without evidence to support
it. Code § 8.01-680; Stockton v. Commonwealth. 227 Va. 124,14546, 314 S.E.2d 371, 385, cert, denied. 469 U.S. 873 (1984); Albert
V. Commonwealth. 2 Va. App. 734,741-42,347 S.E.2d 534,538-39

(1986). The jury heard the testimony of the witnesses and observed
their demeanor. Further, in addition to the elements of robbery, the
jury was instructed on concert of action as well as principal in the
second degree. The record contains sufficient evidence to support the
jury's verdict, thus it will not be disturbed on appeal.
Session v. Commonwealth, supra, slip op. at 3-4.
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, ^

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
courts, and this presumption of correctness applies to facts found by both trial and appellate
courts. 28 U.S.C. § 2254(d); Sumnerv. 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 fi*om either "consider[ing] anew the

jury's guilt determination or "replac[ing] the state's system of directappellate review"). Instead,
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).

Here, for the reasons expressed in the Courtof Appeals' opinion, it is apparent that a
rational trier of fact could have found Session guiltyof the robbery with which he was charged.
See Jackson. 443 U.S. at 319. Accordingly, the state courts' denial of relief on this claim was

neither contrary to, nor an unreasonable application of, clearly established federal law, nor was it
13

based on an unreasonable determination of the facts. Accordingly, the same result is compelled
here. Williams. 529 U.S. at 412-13.
V. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss this petition will be granted,

and the petition will be dismissed with prejudice. An appropriate Order and judgment shall
issue.

Entered this _
__^/^day of

2016.

Alexandria, Virginia
Anthony J.
United States

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