Drummond v. Clarke
Filing
18
MEMORANDUM OPINION. Signed by District Judge Claude M. Hilton on 2/23/2018. (dest, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Marquise O'Bryan Drummond,
Petitioner,
I:17cv712 (CMH/MSN)
V.
Harold W. Clarke,
Respondent.
MEMORANDUM OPINION
Marquise O'Bryan Drummond, a Virginia inmate proceeding pro
has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of a
conviction entered in the Circuit Court of Accomack County. Case No. 13CR079-01 and -02.
Before the Court is the respondent's Motion to Dismiss the petition.
I. Background
On February 13,2014, following a bench trial, Drummond was convicted of one count
each of possession of ammunition by a felon and possession with intent to distribute cocaine. On
June 26,2014, he was sentenced to an aggregate sentence of twenty (20) years in prison with
fourteen (14) years suspended. Drummond appealed the judgment to the Court of Appeals of
Virginia, arguing that the evidence was insufficient to sustain the convictions. The petition for
appeal was denied on March 26,2015. Drummondv. Commonwealth. R. No. 1352-14-1 (Va.
Ct. App. Mar. 26, 2015). The Supreme Court of Virginiarefused a petition for further review on
November 2,2015. Drummond v. Commonwealth. R. No. 150622 (Va. Nov. 2, 2015).
On September 16,2016, Drummond filed a petition for a statewrit of habeas corpus in
the Supreme Court of Virginia, alleging that hereceived ineffective assistance of trial and
appellate counsel for several reasons. The petition was dismissed onMay 30,2017. Drummond
V. Clarke. R. No. 161342 (Va. May 30,2017); Dkt. No. 12, Ex. 1.
Drummond then turned to the federal forum and timely filed this petition for relief
pursuant to § 2254 on June 13,2017, reiterating the same claims he exhausted in his state habeas
corpus proceeding.
28 U.S.C. § 2254(b); Granberrv v Green 481 U.S. 129 (1987).
Specifically, Drummond argues that he is entitled to § 2254 for the following reasons:
1.
He received ineffective assistance of trial counsel
when his lawyer failed to make vital pretrial
investigations.
2.
He received ineffective assistance of trial counsel
because his lawyer failed to make an adequate and
timely motion for pretrial discovery ofall exculpatory
evidence.
3.
He was denied effective assistance of trial counsel
when his attorney failed to object to "inculpatory
statements" made by non-testifying witnesses that
violated the Confrontation Clause.
4.
The prosecutor committed misconduct by allowing
the Commonwealth's chief witness to testify falsely.
5.
The prosecutor committed misconduct by failing to
disclose exculpatory evidence.
6.
His right to due process was violated when the trial
court permitted the prosecution to withhold
exculpatory evidence.
7.
He received ineffective assistance of appellate
counsel; when his attorney failed to argue that the trial
court erred by refusing to compel the prosecutor to
disclose the surveillance tape and to make the
confidential
informants
available
for
cross-
examination.
On October 10, 2017, respondent filed a Rule 5 Answer and a Motion to Dismiss the
petition witha supporting briefand exhibits, and provided petitioner with the notice required by
Roseborov. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K. [Dkt. No. 10-13]
Petitioner subsequently filed a traverse. [Doc. No. 16] Accordingly, this matter is ripe for
disposition.
II. Procedural Default
Three of the claims raised in this petition are procedurally defaulted. When Drummond
first raised claims 4 (suborning of perjury by the prosecutor and failure to allow Drummond an
opportunity to interview the confidential informants), 5 (prosecution's failure to disclose
exculpatory evidence) and 6 (errors with respect to the confidential informants and surveillance
tape) in his petition for a state writ of habeas corpus, the Supreme Court of Virginia determined
pursuant to Slavton v. Parriean. 215 Va. 27,29,205 S.E.2d 680, 682 (1974), that these non-
jurisdictional issues could have been raised at trial and on direct appeal and therefore were not
cognizable in a habeas proceeding. Drummond v. Clarke. R. No. 161342, slip op. at 6 - 7,
On federal habeas corpus review, § 2254(d) mandates that a state court's finding of
procedural default be presumed correct, provided that the state court relied explicitly on
procedural grounds to deny petitioner relief and that the procedural rule relied on is an
independent and adequate state ground for denying relief Ford v. Georgia. 498 U.S. 411,423-24
(1991). The Fourth Circuit has consistently held 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, the Virginia court's express finding that
Slavton barred review of Claims 4 through 6 of this petition also precludes federal review of
those claims.'
'The Supreme Courtof Virginia denied oneportion of Claim6 on the merits; that argument will
be addressed infra in the "Analysis" section of this Memorandum Opinion.
A federal court may not review a procedurally barred claim absent a showing of cause
and prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris v. Reed.
489 U.S. 255,262 (1989). In his Traverse to the Motion to Dismiss [Dkt. No. 16], Drummond
does not contest that he has procedurally defaulted Claims 4, 5 and most of 6, nor does he
attempt to make a showing of cause and prejudice to excuse his defaults. Accordingly, Claims 4,
5 and most of 6 are procedurally barred from federal review.
III. Merits Standard of Review
When a state court has addressed the merits of a claim raised in a federal habeas petition,
the federal court may not grant the petition based on that 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 of those standards of review.
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." 14 at 413. Under the "unreasonable application" clause, "a
federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the state-court decision applied [the law] incorrectly." Woodford v.
Visciotti. 537 U.S. 19,24-25 (2002). Thus, "[t]he question under the AEDPA is not whether a
federal court believes the state court's determination was incorrect, but whether that
determination was unreasonable - a substantially higher threshold." Schriro v. Mandrigan. 550
U.S. 465, 673 (2007). "As a condition for obtaining habeas corpus from a federal court, a state
prisoner 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. Richten 562 U.S. 86,
103 (2011). "If this standard is difficuh to meet - and it is - 'that is because it was meant to be.'"
Burt V. Titlow. 571 U.S. _, 134 S.Ct. 10,16 (2013) (quoting Richter, 562 U.S. at 102).
When a federal habeas petitioner challenges the reasonableness ofthe factual basis for a
state conviction, the AEDPA "requires federal habeas courts to presume the correctness of state
courts' factual findings unless applicants rebut this presumption with 'clear and convincing
evidence.'" Schriro, 550 U.S. at 473-74. Under the AEDPA 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).
IV. Analysis
In his first three claims, Drummond contends that his trial counsel provided ineffective
assistance for various reasons. 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 reasonableprofessional
assistance." Id. at 689; see also. Spencer v. Murrav. 18 F.3d 229, 233 (4th Cir. 1994) (court must
"presume that challenged acts are likely the resuh 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." Murrav 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).
In portions of Claims 1 and 2, Drummond contends that trial counsel provided ineffective
assistance by failing to make vital pretrial investigations which would have revealed that the
search warrant for his residence was obtained on false pretenses. In a portion of Claim 2,
Drummond makes the related claim that trial counsel's representation was ineffective because he
failed to make an adequate and timely motion for pretrial discovery of all exculpatory evidence.
The Supreme Court of Virginia found these arguments to be without merit for the following
reasons:
In portions of claims (1) and (2), petitioner contends he was denied
effective assistance of counsel when trial counsel failed to conduct a
reasonable pre-trial investigation. Petitioner contends Deputy Glen
Bailey obtained a search warrant for petitioner's residence at 17284
Ross Lane by falsely telling the magistrate he had a "surveillance
tape" showing petitioner involved in a drug transaction with
"Confidential Informant 2." Petitioner contends he told counsel the
tape could not exist because petitioner "was never involved in such
a transaction." Had counsel investigated or attempted to compel
disclosure of the tape, he would have discovered there was no
surveillance tape and counsel could have challenged the affidavit
supporting the search warrant pursuant to Franks v. Delaware. 438
U.S. 154 (1978) at the suppression hearing. Counsel also could have
impeached Deputy Bailey at trial.
The Court holds these portions of claims (1) and (2) satisfy neither
the "performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland v. Washington. 466 U.S. 668,687 (1984).
The record, including the transcript of the suppression hearing and
trial, the affidavit ofDeputy Bailey, and the affidavit in support ofthe
search warrant, demonstrates Deputy Bailey obtained a search warrant
for petitioner's residence based upon an affidavit in which Deputy
Bailey averred two confidential informants told him petitioner
routinely sold cocaine from the residence. Confidential Informant I
("CI1") had recently seen large quantities ofcocaine in the residence
and Bailey had used Confidential Informant 2 ("CI 2") to conduct a
controlled purchase of crack cocaine from petitioner at the residence
within the past 72 hours. Deputy Bailey averred that the transaction
had been video and audio recorded and that a field test conducted on
the purchased substance indicated the substance was cocaine. Bailey
averred both informants had proven reliable in the past. Bailey
explained during the suppression hearing that the magistrate had
asked him to elaborate on the details ofthe transaction and the deputy
had explained he had driven CI 2 to petitioner's residence, equipped
him with a recording device, and provided him with money to make
the purchase. Deputy Bailey admitted at the hearing that the sole basis
for his knowledge that the petitioner had been the individual selling
the drugs was that CI 2 had told him the petitioner was the seller. In
his affidavit submitted to this Court, Bailey further acknowledges the
recording ofthe transaction does not show petitioner's face, although
it does show details of the transaction. Bailey reiterates he relied on
CI 2's report that petitioner was the individual who sold drugs to him.
Petitioner was present and alone when police executed the search
warrant at 17284 Ross Lane. They discovered six ounces of cocaine
in three different areas of the house next to items of petitioner's
personal property, ammunition on top of a dresser in the bedroom,
and a notebook containing petitioner's name with entries consistent
with the consignment sale of narcotics. In addition, officers found
cocaine in the car petitioner drove to the house.
Counsel explains in his affidavit that he did not attempt to obtain a
copy of the recording of the transaction or challenge the search
warrant on the grounds that Deputy Bailey was lying and that the
transaction never occurred because counsel did not believe such a
challenge would be successful.
Under the circumstances, this
decision was reasonable. Given the abundance ofevidence in front of
counsel that petitioner had been selling drugs from his home, counsel
could reasonably have discounted petitioner's claim that the
surveillance tape could not exist because petitioner "was never
involved in such a transaction." Thus, it was reasonable for counsel
not to challenge the facts set forth in the search warrant affidavit, but
to argue, as counsel did, that the facts did not establish probable cause
for the magistrate to have issued the warrant. 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.
Drummond v. Clarke, supra, slip op. at 1- 3.
It is well settled in federal jurisprudence that "'strategic choices made [by counsel] after
thorough investigation... are virtually unchallengeable....'" Grav v. Branker. 529 F.3d 220,229
(4th Cir.), cert, denied. 129 S. Ct. 1579 (2009), quoting Strickland. 446 U.S. at 690-91. A
considered choice regarding the use of defenses is one such strategic choice, and it consequently
is entitled to a "strong presumption" that it amounted to reasonable professional assistance.
Cardwell v. Netherland. 971 F.Supp. 997,1019 (E.D. Va. 1997); Strickland. 466 U.S. at 689.
Because counsel in this case was faced with an "abundance of evidence" that Drummond was
selling drugs from his home, the foregoing determination by the Supreme Court of Virginia that
counsel provided effective assistance by making a strategic choice to challenge the legal validity
of the search warrant rather than the existence of the surveillance tape was a reasonable
application of this clearly establishedfederal law. Grav. 529 F.3d at 229. In addition, the
Court's decision was based on a reasonable determination of the facts.^ Accordingly, that
determination cannot be disturbed here. Williams. 529 U.S. at 412-13.
In additional portions of his first three claims, Drummond argues that counsel's failure to
interview the confidential informants prior to trial and to move to compel their appearances at
trial amounted to ineffective assistance. The Supreme Court of Virginia disagreed, as follows:
In additional portions ofclaims (1) and (2) and a portion ofclaim (3),
petitioner contends he was denied effective assistance of counsel
when trial counsel failed to interview the confidential informants
before trial or to move the trial court to compel their appearance for
interviews and trial. Petitioner contends the confidential informants
would have provided "potentially exculpatory testimony," which
would have aided counsel in "exposing if rewards were offered to
both Confidential Informants 1 & 2 in the course ofhaving Petitioner
indicted" and would have allowed counsel to discredit the testimony
of Deputy Bailey. Petitioner contends the confidential informants
were "trying to escape convictions, by providing [] tips on anyone."
Petitioner does not articulate what information he believes the
confidential informants would have provided that would have
impeached Deputy Bailey.
The Court holds these portions of claims (1), (2) and (3) satisfy
neither the "performance" nor the "prejudice" prong ofthe two-part
test enunciated in Strickland. The Supreme Court has held: "[w]hat
is usually referred to as the informer's privilege is in reality the
Government's privilege to withhold fi-om disclosure the identity of
persons who furnish information of violations of law to officers
^Appended as an exhibit to the response to petitioner's application for a state writ of habeas
corpus is the affidavit ofpetitioner's counsel, Allan Zaleski. In it, Mr. Zaleski attests that he did not
move to obtain a copy of the videotape of the transaction which formed the basis of the search
warrant because he "did not believe that a challenge to the search warrant in which [he] accused
Investigator Bailey of lying about the transaction would be successful. Instead [he] moved to
suppress on other grounds. Moreover, [he] believed that our strongest defense to the charge was to
challenge the sufficiencyof the evidence to prove that Mr. Drummondwas guilty. Consequently,
[he] focused on that issue." Drummond v. Clarke. R. No. 161342, Motion to Dismiss, Ex. 1.
In his Traverse, petitioner mischaracterizes this affidavit as an admission that "defense
counsel's trial strategy wasto be ineffective." [DE 16at 7] Instead, the affidavit explains counsel's
reasoned strategic decision to base the defense on a challenge to the sufficiency of the evidence
rather than on an accusation that Deputy Bailey lied to obtain the search warrant.
9
charged with enforcement ofthe law." Roviaro v. United States. 353
U.S. 53,39 (1957). Limitations exist on the privilege, thus "[w]here
the disclosure of an informer's identity, or of the contents of his
communication, is relevant and helpful to the defense of an accused,
or is essential to the fair determination of a cause, the privilege must
give way." Id- at 60-61. However, disclosure is generally not
required "where the issue is preliminarily one of probable cause" to
support an arrest or a search made in reliance on facts supplied by an
informer officers have reason to trust." McCrav v. Illinois. 386 U.S.
300, 311-14 (1967) (upholding practice of Illinois courts where
disclosure of informant's identity was not required if trial judge
convinced by evidence officers relied in good faith on credible
information supplied by reliable informant). See also Lanier v.
Commonwealth. 10 Va. App. 541, 552, 394 S.E.2d 495, 502 (1990)
(trial court did not abuse its discretion in denying disclosure motion
where affidavit in support of search warrant included information
provided to officer by informant, basis for informant's knowledge,
description of officer's relationship to informant, and officer's
reasons for believing informant was credible).
The record, including the transcript of the suppression hearing and
trial, the affidavit of Deputy Bailey, the affidavit of counsel, and the
affidavit in support ofthe searchwarrant, demonstrates Deputy Bailey
obtained a search warrant for petitioner's residence based on the
information he received from two known reliable informants who had
recently seen drugs in petitioner's residence and based on his own
observations made when he took one ofthe informants to petitioner's
residence to make a controlled purchase ofcrack cocaine. Petitioner
was subsequently convicted based on the evidence recovered from his
residence when the search warrant was executed. Under the
circumstances, counsel could reasonably have determined the record
adequately demonstrated Deputy Bailey relied in good faith on
credible information supplied by reliable informants, the identity of
the informants would not have been helpful or relevant to petitioner's
defense at trial, and any motion to obtain the informants' identities
would therefore have been futile. Furthermore, petitioner has not
proffered the substance ofany statements the confidential informants
would have made at interviews or at trial other than to say whether or
not they were compensated for their services, which petitioner has not
established would have been helpful to his defense at trial. 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.
10
Drummond v. Clarke, supra, slip op. at 3 - 4.
The Supreme Court of Virginia's foregoing holding was a reasonable application of the
Strickland principles. In general, courts "are reluctant to find ineffective assistance based upon
complaints regarding uncalled witnesses." Lenz v. True. 370 F.Supp.2d 446,479 (W.D. Va.
2005). A petitioner cannot show that he was prejudiced by the absence of a witness' testimony
unless he demonstrates "not only that [the] testimony would have been favorable, but also that
the witness would have testified at trial." Alexander v. McClotter. 775 F.2d 595, 602 (5th Cir.
1985). Thus, where a petitioner fails to proffer precisely what testimony a missing witness
would have provided and to supply an affidavit verifying that proffer, he does not meet his
burden to demonstrate that counsel's performance was ineffective. S^ Makdessi v. Watson. 682
F. Supp. 2d 633,654 (E.D. Va. 2010). Because the Supreme Court of Virginia's holding was
factually reasonable and in accord with these controlling federal principles, its determination may
not be disturbed here. Williams. 529 U.S. at 412-13.
Drummond also asserts as part of Claim 2 that his counsel provided ineffective assistance
by refusing adequately to contest the prosecutor's misconduct in sanctioning concealment of the
surveillance tape, which he asserts was a violation of his rights imder Bradv v. Marvland. 373
U.S. 83 (1963). [Dkt. No. 3 at 5-6] The Supreme Court of Virginia disagreed for the following
reason:
The Court holds this portion of claim (2) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the transcript ofthe
suppression hearing and trial, the affidavit of Deputy Bailey, the
affidavit ofcounsel, and the affidavit in support ofthe search warrant,
demonstrates the surveillance tape was not concealed but that counsel
reasonably determined not to request a copy ofit. Thus, petitioner has
failed to demonstrate that counsel's performance was deficient orthat
there is a reasonable probability that, but for counsel's alleged errors,
11
the result of the proceeding would have been different.
Drummond v. Clarke, supra, slip op. at 4. Because this determination was based on a reasonable
determination of the facts, as discussed in connection with Claim 1 above, and was in accord
with Strickland, supra, the same result must be reached here. Williams. 529 U.S. at 412-13.
In the final portion of Claim 2, Drummond argues that he received ineffective assistance
when counsel failed to compel discovery of "prior statements made and written by" Deputy
Bailey. [Dkt. No. 3 at 7] He contends that had counsel done so, defense counsel could have
impeached Bailey's credibility and the court would have been compelled to dismiss the
indictments. The Supreme Court of Virginia rejected this argument on the following holding:
The Court holds this portion of claim (2) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland.
Petitioner fails to proffer any prior
statements made by Deputy Bailey, to articulate the substance ofsuch
statements, or even to state the basis for his belief that such
statements exist. 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.
Dnunmond v. Clarke, supra, slip op. at 5. As discussed above, federal precedent holds that a
failure to proffer the substance of allegedly missing statements and to supply an affidavit
verifying the proffer is fatal to a claim that its absence was the result of ineffective assistance.
Makdessi. 682 F. Supp. 2d at 654. Accordingly, the Virginia Supreme Court's rejection of this
argument was consistent with that authority, and also was based on a reasonable determination of
the facts. As such, it may not be disturbed. Williams. 529 U.S. at 412-13.
In Claim 3, Drummond argues that he received ineffective assistance of counsel when his
attorney failed to raise a Confi-ontation Clause objection to Deputy Bailey testifying at the
suppression hearing and during trial to statementsmade by the confidential informants. The
12
Supreme Court of Virginia rejected this contention on the following holding:
The Court holds this portion of claim (3) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the transcript ofthe
suppression hearing and trial, the affidavit of Deputy Bailey, the
affidavit ofcounsel, and the affidavit in support ofthe search warrant,
demonstrates Deputy Bailey's testimony regarding statements made
to him by confidential informants was offered at a suppression
hearing to prove to the trial court that police had probable cause to
obtain a warrant to search petitioner's residence. The Supreme Court
has expressly rejected the argument that the Sixth Amendment right
to confrontation is violated when the prosecution fails to produce an
informant to testify at a pretrial suppression hearing, and officers
testifying as to the basis for probable cause are permitted to testify as
to what the informer told them. S^ McCrav. 386 U.S. at 313-14
(quoting Cooper v. California. 386 U.S. 58, 62 n. 2 (1967))
("Petitioner also presents the contention here that he was
unconstitutionally deprived ofthe right to confront a witness against
him, because the state did not produce the informant to testify against
him. This contention we consider absolutely devoid of merit.")
Additionally, Deputy Bailey offered no testimony at petitioner's trial
respecting the informant's statement. Under the circumstances,
counsel could reasonably have determined a confrontation clause
objection would have been meritless. See Correll v. Commonwealth.
232 Va. 454,469-70, 352 S.E.2d 352, 361 (1987). 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.
Drummond v. Clarke, supra, slip op. at 5 - 6.
For the reasons which it clearly articulates, the foregoing holding by the Supreme Court
of Virginia was both factually reasonable and consistent with the federal authorities upon which
it expressly relied. The same result consequently is compelled here. Williams. 529 U.S. at 41213.
In the portion of Claim 6 that was not procedurally defaulted in the state forum,
Drummond argues that appellate counsel provided ineffective assistance by not assigning as
error the trial court's failures to supervise discovery and to compel the prosecution to disclose the
13
identities of the confidential informants. The Supreme Court of Virginia dismissed this claim on
the following holding:
The Court holds this portion of claim (6) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner has not identified any rulings by
the trial court regarding discovery or disclosures of the identities of
the confidential informants that counsel could have raised on appeal.
Moreover, the selection of issues 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 of the proceeding
would have been different.
Drummond v. Clarke, supra, slip op. at 7.
As the Virginia court recognized, the Strickland analysis applies to claims of ineffective
assistance on appeal as well as at trial. Matire v. Wainwrisht. 811 F.2d 1430,1435 (11th Cir.
1987). Because "appellate counsel is given wide latitude to develop a strategy," Lovitt v.
Angelone. 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 Stricklandanalysis. Accordingly, the
Supreme Court of Virginia's rejection of thisportion of Claim 6 was factually reasonable and in
accord with applicable federal principles, Strickland, supra, andthatsame result must be reached
here. Williams. 529 U.S. at 412-13.
In Claim 7, Drummond argues first that he received ineffective assistance of appellate
counsel when the trial court's failure to compel the prosecutor to disclose the surveillance tape
and make the confidential informants available for cross-examination was not assigned as error.
The Supreme Court of Virginia found no merit to this contention, as follows :
14
The Court holds tWs portion of claim (7) -satisfies neither the
••"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner has not identified any rulings by
the trial court regarding disclosure ofthe surveillance tape or securing
the presence ofthe confidential informants at trial that counsel could
have raised on appeal. Moreover, 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, 463 U.S. at 75152. 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.
Drummond v. Clarke, supra, slip op. at 7.
In another portion of Claim 7, Drummond asserts that he received ineffective appellate
representation when counsel failed to argue that the trial court erred by permitting the prosecutor
to introduce inculpatory statements made by non-testifyingwitnesses who were available to
testify. Again, the Supreme Court of Virginia rejected this assertion on the following holding:
The Court holds this portion of claim (7) satisfies neither the
"performance" nor the 'prejudice' prong of the two-part test
enunciated in Strickland. Petitioner has not identified any rulings by
the trial court permitting the prosecutor to introduce inculpatory
statements againstpetitionerby non-testifying witnessesthat counsel
could have raised on appeal. Moreover, the selection of issues to
address on appeal is left to the discretion of appellate counsel, and
counsel need not address every possible issue on appeal. Id 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.
Drummond v. Clarke, supra, slip op. at 8,
As to both of these portions of Claim7, the Virginia court's analyses comported with the
settled federal principles thatappellate counsel is notobliged to assert every conceivable claim
onappeal, and that the choice ofwhich issues to pursue is a strategic decision within counsel's
purview. Jones. 463 U.S. at 751-52. As petitioner made no showing that his appellate counsel's
15
representation satisfied either prong of the Strickland analysis, the rejection of both portions of
Claim 7 by the Virginia court was factually reasonable and in accord with applicable federal
principles, and that same result is compelled here. Williams. 529 U.S. at 412-13.
Lastly, it is noted that Drummond includes an argument in his Traverse that he should
receive an evidentiary hearing in this matter. [Dkt. No. 16 at 8-9] This position is misplaced.
The Supreme Court held in Cullen v. Pinholster. 563 U.S. 170 (2011) that "[i]f a claim has been
adjudicated on the merits in a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before that state court." Thus, "[i]n such a
circumstance, any evidentiary hearing in federal court is unwarranted, as new evidence adduced
during such a hearing could not be considered in making the determination under § 2254(d)(1)."
Williams v. Stanlev. 581 Fed, App'x 295,296 (4th Cir. Aug. 20,2014). Accordingly, petitioner's
request for a federal evidentiary hearing is without merit.
V. Conclusion
For the foregoing reasons, respondent's Motion to Dismiss must be granted, and this
petition for habeas corpusrelief must be dismissed with prejudice. An appropriate Order and
judgment shall issue.
Entered this
of
2018.
United States District Judge
Alexandria, Virginia
16
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