Nelson v. Johnson

Filing 18

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Ricky Donnell Nelson, recommending that the instant petition be denied and denying petitioner's motion for an evidentiary hearing. Signed by Magistrate Judge F. Bradford Stillman and filed on 3/31/09. Copy mailed: 3/31/09(jcow, )

FILED
UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OP VIRGIN!

Norfolk Division
CLERK. U.S. DISTRICT COURT

RICKY DONNELL NELSON,

#312831,

NORKOl.K. VA

Petitioner,

v.

CIVIL ACTION NO.

2:08cv349

GENE M. JOHNSON, Director of the Virginia Department of Corrections,
Respondent.
UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This
corpus

matter
28

was

initiated
§ 2254.

by

petition
The matter

for
was

a

writ

of

habeas
to the

under

U.S.C.

referred

undersigned provisions

United of 28

States §

Magistrate

Judge, and (C),

pursuant Rule 72(b)

to of

the the

U.S.C.

636(b)(1){B)

Federal

Rules

of

Civil

Procedure,

and Rule

72

of

the Local

Civil

Rules of the United States District Court for the Eastern District

of Virginia.
that

For

the reasons

stated herein,

the Court recommends
corpus be DENIED.

the instant petition for a writ
I.

of habeas
CASE

STATEMENT OF THE

A.

Background

On

March
was

10,

2003,
in

Petitioner,
the Circuit

Ricky
Court

Donnell
of the

Nelson
City of to

("Nelson"),

convicted

Fredericksburg

("Circuit Court")

of possession with the intent

distribute cocaine,

second offense

(Case No. CR02-439).x

Following

1 Prior to trial, Timothy James Wall,
During trial and sentencing,
Joseph

Esq. represented Nelson.
Crickman,
Synan,

Adam

Bartholomew

Esq.
Esq.

represented

Nelson.

Albert

Christian

a

sentencing

hearing

on

May

5,

2003,

Nelson

was

sentenced

to

a

total of five
suspended,
2003.

(5)

years imprisonment,
in the

two

(2)

years of which were
order dated May 8,

as

reflected

court's

final

On September 22,

2003,

Nelson filed a petition for appeal On November 26, 2003,

in

the Court of Appeals of Virginia. of Appeals
03-2.

the Court 1358to

denied Nelson's petition for appeal.
2003, Nelson noted his
Thereafter,

Record No.

On December 19,

intent

to appeal

the Supreme Court

of Virginia.

on November 22,

2004,

Nelson filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. Record No. 042724. The Supreme Court of

Virginia awarded the writ of habeas corpus,

stating that Nelson had

been denied his

right

to appeal

to

the

Supreme Court
Id.

of Virginia
On January

and granted Nelson leave to file a delayed appeal.

23,

2006,

the

Supreme

Court

of

Virginia

denied

Nelson's

direct

appeal.

Record No.

052010.

In July 2006,

Nelson filed a petition

for a writ

of

habeas

corpus

in the

Circuit Court

for

the City of

Fredericksburg,

Virginia

("Circuit Court")

which the Circuit Court

dismissed by Order on July 24,

2007.2

Nelson appealed this denial,

represented Nelson in his appeal

to the Virginia Court of Appeals,

and

John

A.

Mell,

Esq.

represented Nelson

in

his

appeal

to

the

Supreme Court

of Virginia.

2 Nelson alleged the following grounds:
erred by not granting him a continuance; (b) The Commonwealth violated his Sixth Amendment right to counsel by transferring him to an institution located far from his defense (a) [The Circuit Court for the City of Fredericksburg]

and the appeal was

denied on May 1,

2008.

On

July

23,

2008,

while

in

the

custody

of

the

Virginia

Department of Corrections at the Lawrenceville Correctional Center,
Nelson executed the instant petition for a writ of habeas corpus

pursuant to 28 U.S.C. petition.
fee,

§

2254.

The Court conditionally filed this

On September 22,

2008, Nelson submitted the $5.00 filing
29, 2008. On November 6,

which the Court

filed on September

2008,

Respondent

filed

his

Rule

5

Answer

and

Motion

to

Dismiss

accompanied by a supporting memorandum

("Respondent's Memorandum")

and a Notice

of Motion

Pursuant

to Local

Rule

7{k).

On December

10,

2008, Nelson filed a response to Respondent's Motion to Dismiss
Response") and a Motion
B.

("Nelson's

for an Evidentiary Hearing.

Grounds Alleged

Nelson
relief under

now
28

asserts
U.S.C. §

in

this

Court

that

he

is

entitled

to

2254

on

substantially

the

following

grounds: 1. The Circuit Court erred in considering Respondent's

motion

to

dismiss

in

Nelson's

state

habeas

proceeding

because the motion was

untimely;

lawyer;

(c) The Petitioner has newly discovered evidence which he should be allowed to present and he has been denied due process due to ineffective assistance of his trial and appellate counsel;
(d) The Commonwealth was "malicious" both during the preliminary

hearing and the trial by withholding certain information from him; (e) The Court erred by admitting into evidence the Certificate of Analysis, and the evidence at trial was insufficient to convict
him.

2.

The Circuit Court erred in denying Nelson habeas relief because he was from his counsel;
Court erred by ruling
not

corpus

transferred to a jail

located far

3.

The Circuit
discovered

that

claims

of newly

evidence

presented,

and

consequently

claims of ineffective assistance of Counsel,

were barred

as being issues not raised at trial or upon direct appeal by petitioner;
4. The Circuit Court
for an

erred by denying Petitioner's
hearing in his state

request
habeas

evidentiary

proceeding;

5.

The Circuit Court erred "in failing to find that error in
the admitting into evidence the certificate of analysis

was a kind of duplicate copy precluded a conviction due

to insufficient evidence."3
II. PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING

As a preliminary matter, for an evidentiary argues that hearing he

the Court considers Nelson's request pursuant never to 28 U.S.C. a § 2254(e)(2). and full

Nelson

was

afforded

fair

3

This

Court

concurs

with

the

Circuit

Court

that

w[i]t

is

difficult to discern from this rambling claim exactly what claim the petitioner is trying to present to this Court." Order Denying Pet. for Writ of Habeas Corpus {November 4, 2008) . This Court
construes Nelson's claim to state that the Circuit Court erred in

finding no error in the admittance of the a duplicate of the certificate of analysis rather than the original certificate, and that without a properly introduced certificate of analysis, there was insufficient evidence to convict Nelson.

opportunity
claims."

"to

present
8.

full

legal

and

factual

bases

for

his
that

Petition at

The Court has

determined,

however,

an

evidentiary hearing

is

not

required because

the

facts

in

the

existing record are sufficient to resolve the legal issues raised.
See, e.g.. Rule 8 of the Rules Governing Section 2254 Cases; Beaver

v. Thompson.

93 F.3d 1186,

1190

(4th Cir.

1996) .4

Accordingly,

the

Court DENIES Nelson's Motion
III. FINDINGS OF

for an Evidentiary Hearing.
OF LAW

FACT AND CONCLUSIONS

A.

Exhaustion Requirement

Ordinarily, in state § court

a state prisoner must before and seeking (c) ; federal v.

exhaust remedies habeas Conner. corpus 404

available 28 275

relief. 270,

U.S.C. (1971) .

2254{b) As such, has

Picard

U.S.

this Court cannot grant habeas relief unless the the remedies available to him in 838, the 845

petitioner

exhausted

courts of Virginia.
(1999).

See 0'Sullivan v.

Boerckel.

526 U.S.

"Section § 2254(c)

requires only that state prisoners give

state

courts

a

fair opportunity

to act

on

their

claims."

Id.

at

4 Beaver held that the Court will only hold a new evidentiary
hearing when a petitioner

(1) alleges additional facts that, if true, would entitle him to relief, and (2) establishes any one of the six
factors set out by the [Supreme] Court in Towns end v.

Sain.

372

U.S.

293,

83

S.Ct.

745,

9

L.Ed.2d 770
one

(1963)
of
1, the

(overruled in part by Keenev v.

Tamavo-Reyes.

504 U.S.

112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)), or factors provided in 28 U.S.C. § [2254(e)].

844.

(emphasis

in

original).

A

petitioner

has

to

present

the

substance Evatt. give

of

each

claim 911

during

state

proceedings.

Matthews

v.

105 F.3d 907, the state

(4th Cir. one full

1997).

A petitioner also "must to resolve any

courts

opportunity

constitutional issues by invoking one complete round of the State's

established 845.

appellate

review process."

0'Sullivan,

526

U.S.

at

If a claim has been addressed by the state's highest court on
direct or collateral
Allen.

either

review,
443,

it

is

exhausted.
(1953) .

Id.

at

844

(citing Brown v.

344 U.S.

447

The Court notes

that

it

is

Nelson's

burden

to

prove
105

that

his
911

claims

have

been

exhausted.
If his

Matthews v.
could not

Evatt.
be

F.3d 907,
in

(4th Cir.

1997).
they

claims

exhausted

state

court

because

were procedurally barred in state court pursuant to an adequate and independent state procedural rule, the claims are procedurally

defaulted in federal court and federal habeas review is ordinarily
barred. Coleman v. Thompson. 501 U.S. 722, 750 (1991).

In the instant case,

Respondent concedes

that Nelson's claims

are

exhausted

because

he

previously

raised at

them 3.

in

the

Supreme concurs
and

Court

of Virginia.

Respondent's

Brief,

The Court

and therefore FINDS that each of Nelson's claims are exhausted should be addressed herein. B. i. Merits 1 and 4

Claims

The

federal

habeas

statute

provides

that

a

"federal

court

xshall
behalf

entertain

an

application

for

a

writ
to the

of

habeas

corpus

in

of a person in custody pursuant

judgment of a State

court only on the ground that he is

in custody in violation of the

Constitution or laws or treaties of
Anaelone. 151 F.3d 151, 159 (4th

the United States."
1998) (quoting 28

Wright v.
U.S.C. §

Cir.

2254(a)).

Errors

and

irregularities

occurring

during

state

collateral review proceedings are not cognizable on federal habeas

review.
1988) .

IcL_;

Brvant

v.

Maryland.

848

F.2d

492,

493

(4th

Cir.

Nelson's

claims

1

and

4

merely assert

that

the

state

habeas

court

committed habeas
on

procedural review.

errors,

which

are these
this 1

not

cognizable are

on not

federal

Accordingly,
review, and

claims
Court

cognizable

federal

habeas

recommends

denying the petition with respect
ii.

to Claims
and 5

and 4.

Claims 2

A

federal

court

will

usually

not

review

claims

that

are
844

procedurally defaulted.

See Fisher v.

Anaelone,

163 F.3d 835,

(4th Cir.
in state

1998) .
court

"Where a procedural default on a state law issue
the defendant generally is precluded from

occurs,

raising
French.

that

issue

in

a

federal

habeas

corpus

motion."

Keel

v.

162 F.3d 263,

268

(4th Cir.

1998) .

"However,

the basis for

declaring a procedural default must be an independent and adequate
state ground." Id. Slavton v. Parriaan, 215 Va. 27, 30, 205

S.E.2d 680,

682

(1974),5

has consistently been held to constitute

such an independent and adequate state law ground so as to support
procedural default in federal court. Smith v. Murray, 477 U.S.

527,

533

(1986); Wright v. A state court's

Anaelone.

151 F.3d 151,

159-60

(4th Cir. rests

1998).

finding of procedural

default

that

upon a determination of state law is unreviewable even if the state
court clearly misapplied state law. See Glibert v. Moore, 134 F.3d

642,

657

n.14

(4th Cir.

1998). relied on Slavton v. that Nelson was Parrigan, not 215 Va. 27,

The Circuit Court 29 (1974), in

determining

denied

effective

assistance of counsel when he was transferred to a jail located far from his trial defense counsel. The Circuit Court also relied on

Slavton v.

Parrigan in determining that the trial court did not err

in admitting the certificate of analysis or finding that there was
sufficient evidence to convict Nelson. Accordingly, Claims 2 and

5 are procedurally defaulted,

and this Court recommends denying the

petition with respect

to Claims iii.

2

and 5.

Claim 3

In Claim 3,

Nelson asserts

two grounds

that form the basis of

his

claim

for

ineffective

assistance

of

counsel.

First,

Nelson

claims that his counsel was ineffective because his counsel failed to investigate inconsistencies in the testimony of a confidential

5
review.

Slavton holds
215 Va. at

that

claims

that

could have been raised on

direct appeal,

but were not,
682.

cannot be raised on state collateral

informant. for failing

Second, to

Nelson claims that his counsel was to the admission of drug

ineffective and a

object

evidence

certificate of analysis at trial,

without which Nelson claims there

was

insufficient

evidence
each of

as

a

matter
in

of
the

law

to

convict
Court.

him.
The

Nelson presented

these

claims

Circuit

Circuit

Court

denied

each

of

the

claims

on

the

merits,

and

the

decisions were summarily affirmed by the Supreme Court of Virginia. A federal court may on not the grant merits relief in on a habeas unless claim that

previously

adjudicated

state

court

adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United
States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding. 28 U.S.C.
to

§

2254(d).
a

In drafting this
level of

statute,
to the

Congress

"plainly
of

sought

ensure

'deference

determinations

state courts,' provided those determinations did not conflict with
federal law or apply federal law in an unreasonable way." Williams

v.

Tavlor. 149,

529 U.S. 157

362,

386

(2000).

See also Bell v. that,

Jarvis, for

236

F.3d

(4th

Cir.

2000)

{recognizing

claims

adjudicated on the merits by the state court, limited
2254(d),

the federal court "is set forth in §

by
as

the

deferential
by

standard
the

of

review
Court in

interpreted

Supreme

Williams fl.").

Consequently,

"state-court

judgments must be upheld unless,

after

the

closest
is

examination

of

the

state-court
federal

judgment,

a

federal

court

firmly convinced that a
Williams.

constitutional
Moreover,

right has
federal

been violated."

529 U.S.

at 387.

·[a]

habeas

court

may

not

issue

the

writ

simply

because

that

court

concludes in its independent judgment that the relevant state-court

decision

applied

clearly

established

federal

law

erroneously

or

incorrectly.
unreasonable."

Rather,
Id.

that application must
at 411. In deference

also be
to the

[objectively]
state court's

decision, decision
See

this Court may not grant relief unless it determines that on the
236

merits
F.3d at,

was
163

"legally

or

factually
196

unreasonable."
F.3d at 1178).

Bell,

{quoting

Avcox.

Further, issue by

the a

Court State and

is

mindful shall

that be is

"a

determination correct

on a [in a

factual habeas that 28 439

court the

presumed on a

proceeding],"

burden

petitioner

to

rebut

"presumption of correctness by clear and convincing evidence." U.S.C. § 2254(d)(2); see also Tucker v. Ozmint, 350 F.3d 433,

{4th Cir.

2003).

Because the Supreme Court of Virginia summarily

dismissed Nelson's

claims,

it

must

be presumed

that

the

Supreme

Court of Virginia dismissed Nelson's claims for the same reasons as
the Circuit Court. Ylst v. Nunnemaker. 501 U.S. 797, 803 (1991).

Accordingly,
through" the

in addressing Nelson's claims,
Supreme Court of Virginia's

this Court must
to that

"look
of the

decision

Circuit Court.

Id.

10

In

denying

Nelson's

claims

of

ineffective

assistance

of

counsel,

the

Circuit

Court
688

applied
(1984),

the

test

from

Strickland

v.

Washington,

466 U.S.

668,

to conclude that Nelson could

not demonstrate that his
in any way,

trial

or appellate counsel was deficient
Nelson could not demonstrate any
Order Denying Pet.

and even if he could,

prejudice based on the actions

of his counsel.

for Writ of Habeas Corpus
The Circuit Court

(Nov.

4,

2008) .
this Court agrees, that the

stated,

and

types

of

tactical

decisions

about

which

Nelson

complains Id.

are

"virtually
Strickland.

unassailable
466 U.S. at

during
689).

habeas

review."

(citing

The Circuit Court

further stated:

has not demonstrated prejudice from his failure to explore these alleged inconsistencies in the informant's testimony. A review of the trial transcript shows that the evidence obtained against the petitioner during a 'controlled buy' was overwhelming, and included testimony from the
counsel's

[Nelson]

investigating

officer

who

was

familiar

with

the

petitioner's voice, and heard it during the course of the
transaction. The only other claim that appears to be contained in this rambling allegation is that trial counsel was somehow ineffective for not objecting [to] the admission of the drug evidence and the Certificate of Analysis. The petitioner, however, fails to state with particularity what objection a reasonably effective defense attorney could have made, or why he has been prejudiced.

Id.

(emphasis in original). contrary to, nor

The decision of the Circuit Court is clearly

neither

an unreasonable application of,

established Federal law.

Also,

the decision of the Circuit Court

is not based on an unreasonable determination of the facts in light
of the evidence presented in the Circuit Court.
11

Accordingly,

this

Court recommends

denying the petition with respect to Claim 3.
IV. RECOMMENDATION

For the foregoing reasons,

the Court recommends

that Nelson's

petition for a writ of habeas

corpus be DENIED,

that Respondent's

motion

to dismiss

be GRANTED,

and that

all

of Nelson's

claims be

DISMISSED WITH

PREJUDICE.
V. REVIEW PROCEDURE

By

copy

of

this

Report

and

Recommendation,

the

parties

are

notified that:

1. Clerk

Any party may serve upon the other party and file with the written within the objections ten (10) to the from see 28 foregoing the date § findings of mailing and of

specific

recommendations this report to

days

objecting party,

U.S.C.

636(b)(l)(C)

and Fed.

R.

Civ.

P.

72(b),

computed pursuant
plus three

to Rule
(3)

6(a)

of

the

Federal Rules of Civil Procedure,

days permitted by

Rule

6{e)

of

said rules.

A party may respond
(10) P.

to another party's

specific objections within ten copy thereof. See Fed. R. Civ.

days after being served with a 72(b).

2. those

A

district of

judge this

shall

make

a

de

novo

determination findings

of or

portions

report

or

specified

recommendations

to which objection is made.

The parties are further notified that

failure to

file timely

objections to the findings and recommendations set forth above will result in a waiver of the right to appeal from a judgment of this

12

Court based on such

findings

and recommendations.

Thomas v.

Am.

474 U.S.

140

(1985);

Carr v.

Hutto.

737

F.2d 433
(4th Cir.

(4th Cir.
1984).

1984);

United States v.

Schronce.

727

F.2d 91

United States Magistrate Judge
Norfolk,
March 31,

Virginia
2009

13

CLERK7S

MAILING CERTIFICATE

A copy of the foregoing Report and Recommendation was mailed this date to the following:
Ricky Donnell 1607
PRO

Nelson, Road

#312831

Lawrenceville Correctional Center
Planters
SE

Lawrenceville,

VA 23868

Donald Eldridge Jeffrey, III Office of the Attorney General 900 E Main Street
Richmond, Counsel VA 23219 for Defendant

Fernando Galindo,
Clerk of Court

By:

Deput/ Clerk
, 2009

14