White v. Clarke

Filing 29

MEMORANDUM OPINION re: Respondent's Motion to Dismiss and petitioner's Motion to Deny the Respondent's Motion to Dismiss. Signed by District Judge Liam O'Grady on 04/18/17. (pmil, )

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IN THE UNITED STATES DISTRICT COURT FOi^TOE j EASTERN DISTRICT OF VIRGINIA APR I 8 2017 Alexandria Division Larry Maurice White, Petitioner, CLGI'^K, 'J.is. DioTi- , "M'r' r i l:16cvl235 (LO/TCB) V. Harold W. Clarke, Respondent. MEMORANDUM OPINION Larry Maurice White, a Virginiainmateproceeding ^ se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his robbery and probation violation convictions in the Circuit Court for the Cityof Norfolk. On February 8, 2017, respondent filed a Motionto Dismissand Rule 5 Answer, along with a supporting brief and exhibits. Dkt. No. 13-15. Afterreceiving an extension of time,petitioner filed a Motion to Deny the Respondent's Motion to Dismiss. Dkt. No. 28. For the reasons that follow, respondent's Motion to Dismiss will be granted, petitioner'sMotion to Denythe Respondent's Motion to Dismiss will be denied, andthe petition will be dismissed, with prejudice. I. Background Petitioner is detained pursuant to a final judgment of the Circuit Court for the Cityof Norfolk, entered January 11,2013. Case No. CRl1001357. Pursuant to a written plea agreement, plaintiffpledguilty to one count of robbery, in violation of Virginia Code § 18.2-58. Id Petitioner was sentenced to fourteen years imprisonment, with tenyears suspended, for the robbery conviction. Id As a result, petitioner'sprobation was revoked, and he was sentenced to an additional seven years imprisonment. Id Petitioner pursued a directappeal to the Courtof Appeals of Virginia, which affirmed petitioner's convictions. Record No. 0212-13-1. The Supreme Court of Virginia subsequently refused his petition for appeal. Record No. 140125 After pursuing his direct appeal, petitioner timely filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. Record No. 151400. The Supreme Court of Virginia stated the facts as follows. Petitioner pled guilty pursuant to a written agreement that called for his sentence tobecapped atthe midpoint ofhis guidelines' range. ^ Inexchange for his guilty plea, the Commonwealth moved to nolle prosequi indictments for possessionof a firearm by a convicted, violent felon and use of a firearm in the commission of a felony, whichcarrieda combined mandatory minimum sentence of eight years' imprisonment. At the conclusionof the plea hearing, the Commonwealth represented that the midpointof petitioner's guidelines range was nineteenyears and three months. Petitionerwas not asked if this was his understanding, but he did not voice any objection and the trial court accepted his plea as knowing, intelligent, and voluntary.^ Three weeks later, and prior to sentencing, petitioner moved to withdraw his guilty plea.^ Petitioner alleged trial counsel promised petitioner he would receive a maximum sentence of seven years. At a hearing on petitioner's motion, petitioner and his witnesses testified counsel had promised petitioner he would "do no more than three to five years," which counsel denied. As a defense to the robberycharge,petitionerclaimedhe was innocentand arguedhe had a right to take the victim's propertybecause the victim owed petitionermoney for marijuana. The circuit court made a factual finding that the trial counsel told petitioner he would receive an active sentence of three to five years and that petitioner had therefore established a good faithbasis for withdrawing his plea. However, the circuit court also found petitioner had failed to estabhsh he had a reasonable defense, a necessary predicate to the withdrawal of his plea. The court therefore denied petitioner's motion to withdraw his guilty plea. T^e circuit court then found it was obliged to impose an active sentence of only four years because oftrial coimsel's promise. Thus, petitioner received an active sentence within the range he contends induced his plea. Additionally, petitioner does not allege the suspended portion of his sentence would havein any way impacted his decision to ^The plea agreement also called for "such other suspended time, fines, and terms and conditions of Probation that the Courtdeems appropriate." Case No. CRl 1001357. ^At the time petitioner pled guilty he was represented by attorney Duncan St. Clair. Case No. CRl 1001357. ^At this point in the proceedings, St. Clair withdrew as counsel and petitioner was represented by attorney Jennifer Stanton. Case No. CRl 1001357. plead guilty. Had petitioner proceeded to trial andbeen convicted of the original charges, he faced a potential sentence of life plus eightyears' incarceration. *** [C]ounselappointed to representpetitioner at the hearing on his motion to withdraw his guilty plea wrongly stated petitioner's reasonable defense was that he was exercising his right to reclaim his property. Petitioner contends his defense was that he did not rob the victim. Petitioner argues a reasonable jury could have foimdthe victim's identificationofpetitioner was unreliable because he did not knowhis assailant, it wasnighttime, the victim admitted he did not pay attention to his assailant's clothes, petitioner was handcuffed when the victim identified him, and police told the victimpriorto the show-up that they had recovered his property. Petitioner further appears to contend a jury could have rejected the victim's potential trial testimony because his testimony at the preliminary hearing was inconsistent with the physical evidence. Petitioner alleges the victim testified at the preliminary hearing that he had about $180 in his wallet and all his property was recovered firom a bush. Petitioner alleges this testimony was inconsistent with other evidence that only $124 was recovered and a pack of cigarettes was found in petitioner's pocket. Id (footnotes added). The state habeas petition was dismissed on June 20,2016. Id. On December 4,2016, petitioner filed the instant federal petition, wherein he challenges his convictions. Specifically, he alleges that his counsel was ineffective for the following reasons. 1. Trial counsel Duncan R. St. Clair, III (a/k/a/ Bob St. Clair), improperlyinduced petitioner to acceptthe plea agreement basedon the false promise that petitioner's sentence would be "between (three) [sic] and (seven) [sic] years" without conducting a full investigation and where evidence exists for a reasonable [sic]. 2. Trial counsel, Jennifer Stanton, told trial court [sic] at the hearing to withdraw petitioner's plea, without consulting the petitioner, that evidence of a reasonable defenseto the robbery chargewould be that petitionerwas exercising his common law right to reclaim his propertywhere petitionertold thejudge at the same hearingthat "I'm maintaining my innocence. I did not rob (the victim) [sic]." Dkt. No. 7. II. standard of Review When a state court has addressed the merits of a claim raisedin a federal habeas corpus petition, a federal court may not grant the petition on that particularclaim unlessthe state court's adjudication was contraryto, or an unreasonable application of, clearly established federal law, or was based onan unreasonable determination ofthe facts presented at the trial."^ 28U.S.C. § 2254(d)(l)-(2). This test erects a "formidable barrier to federal habeas relief for claims adjudicated on the merits. Burt v. Titlow. 134 S. Ct. 10,16 (2013). Under this standard, for a state prisoner to obtain habeas relief, he "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter. 562 U.S. 86,103 (2011). The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based upon an independent review of each standard. Williams V. Taylor. 529 U.S. 362,412-13 (2000). A state courtdetermination violates the "contrary to" standard if it "arrivesat a conclusion opposite to that reached by [the UnitedStates Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Courthas on a set of materially indistinguishable facts." Id at 413. Whenreviewing the state court's findings, the federal court is limited to the record before the state court at the time of the decision. See Cullen v. Pinholster. 563 U.S. 170(2011). Respondent argues that "petitioner must show that he is entitled to relief under the 'new rule' doctrine in Teague v. Lane. 489 U.S. 288 (1989) and itsprogeny." Dkt. No. 15 at 5. "[I]f the State does argue thatthe defendant seeks the benefit of a newrule of constitutional law, the court must apply Teague before consideringthe merits ofthe claim." Caspari v. Bohlen. 510 U.S. 383,389 (1994). To the extent respondent is arguing that Teague applies, this argument fails becausepetitioneris not arguing any new rules of constitutional law. Under the "unreasonable application" clause, the writshould be granted if thefederal court finds that the state court "identifies the correct governing legal principle from [the United States Supreme] Court's decisions but unreasonably applies that principle to the facts ofthe prisoner's case." Williams. 529 U.S. at 413. Importantly, thisstandard of reasonableness is an objective one, and does notallow a federal court to review simply for plain error. Id at 409-10; ^ also Lockver v. Andrade. 538U.S. 63,75 (2003). In addition, a federal courtshould review the state court determination with deference; a federal court cannot grant the writ simply because it concludes that the state court incorrectly determined the legal standard. S^ Woodford v. Visciotti. 537 U.S. 19, 24-25 (2002) (intemal 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^ e.g.. Lenz v. Washington. 444 F,3d 295,300-01 (4th Cir. 2006). 111. Analysis To prevail on an ineffective assistance of counsel claim, a petitioner mustmeet the twopronged test established in Strickland v. Washington. 466 U.S. 668 (1984). Under this test, a petitioner must prove both that his attorney's performance was so deficient "that counsel was not functioning as the 'counsel' guaranteed bythe 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 mustshow thatthere is a "reasonable probability that, but for counsel's unprofessional errors, the resuh of the proceeding would have beendifferent." Id at 694. The two prongs, deficient performance andprejudice, constitute "separate and distinct elements." Spencer v. Murrav. 18 F.3d 229, 233 (4th Cir. 1994). Therefore, a court can appropriately dismiss an ineffective assistance of counsel claim on either prong. Strickland. 466U.S. at 697; ^ also Bell v. Cone. 535 U.S. 685, 695 (2002) (internal citations omitted) ("Without proofof both deficient performance and prejudice to the defendant, we concluded it could not be said that the sentence or conviction resulted fi*om a breakdown in the adversary process thatrendered the result of the proceeding unreliable, andthe sentence or conviction should stand."). A court reviewing a claimof 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. 535 U.S. at 695; Burket v. Aneelone. 208 F.3dl72,189(4thCir. 2000). The Strickland test also "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hillv. Lockhart. 474 U.S. 52, 58 (1985). With regard to the "prejudice" prong in the context of a guilty plea, a petitioner must show that, "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id at 59; ^ also Burket. 208 F.3d at 190. In reviewing a petitioner's claim of ineffectiveassistance of counsel regarding a guilty plea, "the representations of the defendant, his lawyer, andthe prosecutor at such a hearing, as well as anyfindings made by thejudgeaccepting theplea, constitute a formidable barrierin any subsequent collateral proceedings." Blackledee v. Allison. 431 U.S. 63, 73-74 (1977). Declarations made "in open court carry a strong presumption of veracity," and "thesubsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as arecontentions that in the face of the record are wholly incredible." Id at 74. Thus, absent clear and convincing evidence to the contrary, a defendant is bound byhis representations at a plea colloquy concerning the voluntariness ofthe plea and the adequacy of hisrepresentation. Beck v. Aneelone. 261 F.3d 377, 396 (4th Cu-. 2001). A. Claim One In the first part ofpetitioner's first claim, he states that he was denied effective assistance of counsel because St. Clair induced him toenter a guilty plea based onthe false promise that his sentence would be between threeand seven years. More specifically, petitioner states that the trial courtfound that St. Clair led petitioner to believe that his sentence would be between three and five years, and therefore, "his guilty plea does not represent[] a voluntary and intelligent choice among the alternative course [sic] of action open to himbecause St. Clairdid not conduct a full investigation and because evidence exists for a reasonable defense." Dkt. No. 7 at 9. Plaintiffclaims that he "was adamantall the way throughout that he did not want to take the plea; that he was innocent andthat he wanted to go to trial." Id at 12. Petitioner "told [St. Clair], I ain't taking a plea .... [St. Clair] said 'Yo, thatif you don't take the plea, I'm going to hold trial myself fortwo hours and convict you myself.'" Id St. Clair also allegedly kept "threatening" petitioner with the possibility of a life sentence. Id. at 12-13. The Supreme Courtof Virginia dismissed this portion of petitioner's claim, finding that petitioner had not satisfied the prejudice prong of Strickland because "[u]nderthe circumstances, petitioner cannot show that, but for counsel's errors, a reasonable person would havepleaded not guilty, would have proceeded to trial, and the outcome of theproceedings would have been different." Record No. 151400. Petitioner entered the plea agreement believing that he would receive an active sentence between three and five years. The plea agreement also allowed for "such other suspended time, fines, and terms and conditions of Probation that the Court deems appropriate." Therefore, petitioner has notshown that hewould not have pled guilty butfor St. Clair's actions because his sentence ended up being within the range petitioner anticipated according tohis understanding of the plea agreement he accepted. Accordingly, the state habeas court's decision that petitioner did notestablished thathe was prejudiced by St. Clair'sactions is neither contrary to, noran unreasonable application of, existing federal law. Additionally, the state habeas court's determination does not rest upon an unreasonable finding of fact. Inthe second part of petitioner's first claim, he argues that St. Clair did notinvestigate petitioner's "reasonable defense." Petitioner argues thatSt. Clair never provided him with a copy of thepolice officer's sworn statement, which served as the basis forissuing the arrest warrants. Id at 14. Petitioner also argues andthathe hada "reasonable defense." It appears as though petitioner is arguing that, hadSt. Clair conducted an investigation, petitioner would not have pled guilty, he would have gone to trial, and he would have been found innocent. Id. at 21. Specifically, petitioner asserts that, at trial, he could haveargued that (1) the victim's identification of plaintiff was unduly suggestive and (2) the victim made inconsistent statements. Id at 20-25. The state habeas court denied petitioner's claim, finding that the arguments failed to satisfy eitherprong of the Strickland test. Specifically, the court found that [p]etitioner has failed to demonstrate what the DNA and fingerprint analysis or the officer's statement wouldhave shown, and failedto articulate how they would be exculpatory.^ Thus, petitioner has failed to demonstrate that counsel's performance was deficient or thatthere is a reasonable probability that, but for counsel's alleged errors, he would have pleaded not guilty, andproceeded to trial, and the outcome of the proceeding would have been different. "[I]t is well-settled that 'an allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence ortestimony would have been produced.'" Prior to petitioner pleading guilty, the trial court ordered that the wallet and a package ofcigarettes recovered fi-om the crime scene be tested for DNA and fingerprints. Id Results were never submitted to the trial court. Case No. CRl 1001357. Brizuela v. Clarke. 112 F. Supp. 3d 366,376 (E.D. Va. 2015), appeal dismissed, 633 F. App'x 178 (4th Cir. 2016) (quoting Beaver v. Thompson. 93 F.3d 1186,1195 (4th Cir.1996); citing Bassette v. Thompson. 915 F.2d 932,940-41 (4th Cir.1990) (petitionermust allege "what an adequate investigation would haverevealed")). Petitioner makes no profferas to whatthe officer's statement or the DNA and fingerprint testing would have revealed. In addition, petitioner's arguments that he would have been found innocent based on the victim's identification and inconsistent testimony is inapposite to the argument regarding St. Clair's investigation and is unsupported by the record. Thus, the state habeas court's finding is neither contrary to, nor an unreasonable application of, existing federal law. Additionally, the state habeas court's determination does not rest upon an unreasonable finding of fact. Accordingly, the state habeas court's ruling is entitled to deference and Claim One will be dismissed. B. Claim Two Petitioner's second claim is that he was denied effective assistance of counsel because, in support of withdrawinghis guilty plea, Stanton argued that a reasonable defense was that plaintiffhad a rightto the victim'sproperty, rather thansupporting petitioner's argument that a reasonable defense was his innocence. Dkt. No. 7 at 26-27. Petitioner asserts that [a] competent attorney shouldnot have told [the] trial court, withoutconsulting with the petitioner, that evidence of a reasonable defense to the robbery charge would be that petitioner was exercisinghis common law right to reclaim his property where petitioner told the judge multiple times at the same hearing that "I'm maintaining my innocence. I did not rob the (victim) [sic]." [Stanton's] deficient performance in doing so clearly "fell belowan objective standard of reasonableness." ... This is so because "[t]hereis a reasonable probability that, but for counsel's unprofessional errors, Ae result of the proceeding would have been different." Id. at 28-29. The Supreme Court of Virginia dismissedthis claim, finding that neither Strickland prong had been satisfied because [t]herecord ... demonstrates the victimdescribed petitioner to policewithin moments of the robbery. An officer noticed petitioner hurrying away fi*om the scene of the robbery, noticedhe matchedthe victim's description, and attempted to speak with him. Petitionerresponded by fleeing, but was quickly stopped by a police dog. The victim's phone, wallet, money and cigarettes were found near petitioner as the robber. Prior to entering his guilty plea, petitioner told his attorneys the victim owed him money and had been avoiding him and that he had been attempting to collect that debt. In preparing for the motion to withdraw petitioner's plea, counsel discussedthe case with petitioner, includingpetitioner's claim that he did not rob the victim, reviewedthe discoverymaterials provide by the Commonwealth, and determined asserting petitioner's claim ofright defense was the strongest defense she could assert in support of the motion. Although she acknowledged to the trial court that a claim of right defense based on petitioner's alleged attempt to collect an illegal debt might be untenable, counsel could reasonably have determined petitioner's proffered defense was equally implausible. Any assertion petitioner did not rob the victim based on the minor inconsistencies petitioneridentifies or that the victim's identification of petitioner was unreliable would have amounted to no more than a "dilatory or formal" defense. Thus, petitionerhas failed to demonstrate that counsel's performance was deficient or that there is a reasonable probabilitythat, but for counsel's alleged errors, he would have pleaded not guilty and proceeded to trial, and the outcome of the proceeding would have been different. Petitioner has not establishedthat Stanton's argument as to what petitioner's "reasonable defense" wasprejudiced him in any way. In fact, petitioner simply makes conclusory arguments that bothof the Strickland prongs have beensatisfied; however the evidence against petitioner was such that it was not unreasonable to determine that arguing that innocence was a reasonable defense would have failed. Accordingly, the state habeas court's finding is neither contrary to, nor an unreasonable application of, existing federal law. Additionally, the state habeas court's determination does not rest upon an unreasonable finding of fact. Therefore, the state habeas court's ruling is entitled to deference and Claim Two will be dismissed. 10 IV. Evidentiary Hearing In his Memorandum of Law, petitioner states that he believes an evidentiary hearing is necessary. Dkt. No. 7 at 29. Construed liberally, this will be taken as a Motion for an Evidentiary Hearing. Because the state habeas court decided petitioner's claims on the merits, an evidentiary hearing is not appropriate in this matter. Cullen v. Pinholster. 563 U.S. 170,181 (2011) ("[RJeview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."). Accordingly, this motion will be denied. V. Conclusion Nothing in the state court record indicates that the state court decisions were either contrary to, or an unreasonable application of, clearly established federal law, nor did those decisions involve an unreasonable determination of the facts. Accordingly, this petition will be dismissed with prejudice by an Order to be issued with this Memorandum Opinion. Additionally, petitioner is not entitled to an evidentiary hearing, and his motion will be denied. is Entered this dayof A^ 2017. Alexandria, Virginia Liam O'Grady United States District Ji^dge 11

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