Sweeting v. Watson

Filing 20

FINAL ORDER ADOPTING REPORT AND RECOMMENDATIONS for 17 Report and Recommendations, ordering that the petition be Denied and Dismissed and judgment be entered in favor of the Respondent; Denying 19 Motion for Evidentiary Hearing filed by Kenneth Darniel Sweeting; Noting appeal procedures and declining to issue a certificate of appealability. Signed by District Judge Jerome B. Friedman and filed on 1/5/2010. Copy mailed 1/5/2010.(lwoo)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGIN! Norfolk Division
CLERK. U.S. DISTRICT COURT

KENNETH DARNIEL SWEETING, #1167527,
Petitioner,
V.

_____rJO!>"OiK VA

ACTION NO. 2:09cv252

GENE M. JOHNSON, Director of the Virginia Department of Corrections,
Respondent. FINAL ORDER

This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254. The
petition alleges violation of Petitioner's constitutional rights pertaining to his convictions for: possession of a firearm by a convicted felon; possession of marijuana with intent to distribute; the manufacture, sale or distribution of a controlled substance; and possession of a firearm while

distributing or possessing with intent to distribute a controlled substance on October 28,2005, in the
Circuit Court for the City of Newport News. As a result of these convictions he was sentenced to
a term in the Virginia penal system of: two years imprisonment for the conviction of possession of

a firearm as a convicted felon; five years imprisonment, with five years suspended, for the conviction

of possession of marijuana with intent to distribute; ten years imprisonment, with ten years
suspended, for the conviction of the manufacture, sale or distribution of a controlled substance; and

five years imprisonment for the conviction of the possession of a firearm while distributing or
possessing with intent to distribute a controlled substance.

The petition was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(l)(B) and (C) and Local Civil Rule 72 of the Rules of the United States District

Court for the Eastern District of Virginia for report and recommendation. The Magistrate Judge's Report and Recommendation filed December 7,2009 recommends dismissal of the petition. Each
party was advised of his right to file written objections to the findings and recommendations made

by the Magistrate Judge. On December 28,2009 the Court received Petitioner's Objections to the
Report and Recommendation.

The thrust of Petitioner's objection is the belief that his attorney was ineffective because he failed to object to the trial testimony of the investigating detective when the detective previously
made contradictory statements in a search-warrant affidavit. Although the Petitioner mistakenly

focuses on the alleged false statement of the detective, as well as his attorney in the attorney's

affidavit, the correct issue centers on whether Petitioner's attorney was ineffective for failing to
challenge the testimony. On this, the law is fairly clear. In similar situations various courts have
come to the conclusion that a failure to impeach a witness, or challenge the veracity of his testimony, does not automatically rise to a constitutional deprivation of the right to effective counsel. See

generally Hoots v. Allsbrook, 785 F.2d 1214,1221 (4th Cir. 1986) (holding defense counsel's failure
to impeach state's only identification witness by her criminal record consisting of misdemeanor convictions for worthless checks did not constitute ineffective assistance of counsel); United States v. Sanchez-Galvez, 33 F.3d 829,835 (7th Cir. 1994) (holding defendant's prior drug conviction was
not secured due to constitutionally defective representation, where counsel was not ineffective in

failing to pursue line of inquiry about whether arresting officers manufactured arrest); Garland v.
Maggio, 111 F.2d 199,206 (5th Cir. 1983) (holding trial counsel's decision not to attack witness's
credibility was a matter of trial tactics, where witness had committed perjury in another judicial

hearing); Greene v. Lafler, 447 F.Supp.2d 780, 794 (E.D.Mich. 2006) (holding that the defendant
in robbery prosecution was not denied effective assistance of counsel due to trial counsel's failure

to introduce evidence of perjury where discrepancies in victim's testimony were minor). Moreover,

in this case, the alleged perjured affidavit led to a search-warrant for DNA which did not yield the
Petitioner's DNA on the firearm. [Br. Opp'n at 14] [Doc. No. 18]. Thus, the Petitioner was convicted without a link to DNA evidence on the firearm, so objection to the detective's testimony would have had little effect on the outcome of the case, and therefore fail the second prong of the Strickland'test.
See Strickland v. Washington, 466 U.S. 668,688-89 (1984). Furthermore, while Petitioner alleges
that the detective's credibility would have been called into question had counsel objected to or

impeached his trial testimony, Petitioner admits his "case revolved around the possession of a
weapon that was found on the ground" and not the singular testimony of a lone witness. [Br. Opp'n
at 14].

Petitioner also challenges his counsel's effectiveness for failing to request the firearm be

shown in plain-view at trial, and for failing to request a list of the Commonwealth's witnesses. The
Petitioner brings forth no new arguments in support of these assertions, therefore the Court accept s

the findings and recommendations set forth in the report of the United States Magistrate Judge
to these claims.

as

The Court, having reviewed the record and examined the objections filed by Petitioner to the

Report and Recommendation, and having made de novo findings with respect to the portions

objected to, does hereby adopt and approve the findings and recommendations set forth in the Report
and Recommendation filed December 7, 2009. It is, therefore, ORDERED that the petition be
DENIED and DISMISSED. It is further ORDERED that judgment be entered in favor of

Respondent. Finally, Petitioner's request for an evidentiary hearing, [Doc. No. 19], is also DENIED.

Petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right," therefore, the Court declines to issue any certificate of appealability pursuant to Rule 22(b)

of the Federal Rules of Appellate Procedure. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Petitioner is hereby notified that he may appeal from the judgment entered pursuant to this

Final Order by filing a written notice of appeal with the Clerk of this court, United States
Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within 30 days from the date of entry of
such judgment.

The Clerk shall mail a copy of this Final Order to Petitioner and counsel of record for
Respondent.

Jerome B. Friedman

M.

Norfolk, Virginia

m^f$tfe&P JUDGE

Januarys**, 2010