White v. Clarke
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, )
IN THE UNITED STATES DISTRICT COURT FOi^TOE j
EASTERN DISTRICT OF VIRGINIA
APR I 8 2017
Larry Maurice White,
CLGI'^K, 'J.is. DioTi-
, "M'r' r i
Harold W. Clarke,
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.
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 Id As a result, petitioner'sprobation was revoked, and he was sentenced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
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.
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).
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
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; ^
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
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.
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.
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.
United States District Ji^dge
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