Hickman v. Commonwealth of Virginia
Filing
9
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 6/26/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JOHN F. HICKMAN,
Petitioner,
v.
Civil Action No. 3:llcv668
COMMONWEALTH OF VIRGINIA,
Respondent.
MEMORANDUM OPINION
John F. Hickman, a Virginia probationer proceedingpro se, brings thispetition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his conviction in
the Circuit Court of the County of Henrico, Virginia ("Circuit Court"). Respondent has moved
todismiss the § 2254 Petition. Hickman has replied. This matter is ripe for judgment.
I. PROCEDURAL HISTORY
The Court of Appeals of Virginia effectively summarized the facts in this case:
[W]hen Henrico County Police Officer Livengood responded to a 911 call at
[Hickman's] business, [Hickman] alleged that the mother ofhis child (V.M.) had
hit the baby carrier—with the baby strapped into the carrier—causing the carrier
to fall off a couch onto the floor. V.M. denied the allegation, and Officer
Livengood observed that the baby did not seem injured or distressed. The officer,
who was required to make an arrest upon an allegation of domestic assault, asked
[Hickman] to fill out a written statement form. Moments later, [Hickman]
returned the blank statement form to the officer, now stating that he did not want
to file a written report against V.M. [Hickman] then explained that the incident of
V.M. causing the baby carrier to fall to the floor did not happen.['] Officer
Livengood asked, "So, you made it up?" [Hickman] responded, "Yes."
Hickman v. Commonwealth, No. 1733-09-2, at 2 (Va. Ct. App. Dec. 9, 2009).
Hickman testified that he retracted his truthful report "[bjecause one, [V.M.'s] mother
didn't want me to get [V.M.] in trouble. Two, Ihad an eight-day-old baby who was being
breast-fed [by V.M.]. I mean, what can, I mean, I can't feed the baby. I mean, I can't give him
milk." (July 7,2009 Tr. 31:19-22.)
The Circuit Court found Hickman guilty of giving a false police report, imposed a
$500.00 fine, and sentencedhim to twelve months of imprisonment suspended for a period of
five years. (July 7, 2009 Tr. 41:23-42:10.) Hickman appealed, arguing that the evidence
adduced at trial was insufficient to support his conviction. The Court of Appeals of Virginia
denied the appeal. Hickman, No. 1733-09-2, at 1, 3. The Supreme Court of Virginia refused
Hickman's subsequent petition for appeal. Hickman v. Commonwealth, No. 092602, at 1 (Va.
June 11,2010).
Hickman next filed a petition for a writ of habeas corpus in the Circuit Court ("State
Habeas Petition"). In his State Habeas Petition, Hickman argued, inter alia, that "he was
deprived of due process in the admission of his statement to [Officer Livengood]." Hickman v.
Commonwealth, No. CL10-2430, at 1 (Va. Cir. Ct. Mar. 3,2011). The Circuit Court
"dismisse[d] [this] claim[ ] as procedurally defaulted under the rule in Slayton v. Parrigan, 215
Va. 27, 30, 205 S.E.2d 680, 682 (1974)[.]"2 Id. at 1-2. The Supreme Court ofVirginia
dismissed Hickman's subsequent petition for appeal finding "that the appeal was not perfected in
the manner provided by law because [Hickman] failed to file the notice of appeal." Hickman v.
Commonwealth, No. 110989, at 1 (Va. Aug. 22,2011).
Hickman then filed the § 2254 Petition in this Court making the following claims:
Claim One
The Commonwealth "[v]iolat[ed] [Hickman's] due process right
under the Fourteenth Amendment"3 by admitting Hickman's
statements to Officer Livengood into evidence. (§2254 Pet. 4.)4
2Slayton bars habeas petitioners from raising claims that they could have, but did not,
raise on direct appeal. See Slayton, 205 S.E.2d at 682.
"No state shall... deprive any person of life, liberty, or property, without due process
of law ...." U.S. Const, amend. XIV § 1.
4The § 2254 Petition does notcontain page numbers. Accordingly, in citations to this
document, the Court will refer to the page numbers assigned by the Court's CM/ECF system.
Claim Two
(a)
Trial counsel deficiently5 failed to suppress Hickman's
statements to Officer Livengood.
(b)
Trial counsel deficiently failed to make a motion to strike at
the close of the Commonwealth's evidence.
(c)
Appellate counsel "never presented [Hickman's] theory
that the evidence did not meet the corpus delicti rule as
communicated to counsel via email." (Id)
II. PROCEDURAL DEFAULT
Respondent asserts that Claim One is procedurally defaulted. The doctrine of procedural
default provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas
petitioner's claim on a state procedural rule, and that procedural rule provides an independent
and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his
federal habeas claim." Breardv. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing Coleman v.
Thompson, 501 U.S. 722, 731-32 (1991)).6 Whether astate procedural rule is adequate and
independent is aquestion offederal law. Henry v. Mississippi, 379 U.S. 443, 447 (1965). The
burden of pleading and proving that a claim is procedurally defaulted rests with the state. Jones
v. Sussex IState Prison, 591 F.3d 707, 716 (4th Cir. 2010) (citing cases). Absent a showing of
cause and prejudice or a fundamental miscarriage ofjustice, this Court cannot review themerits
ofa defaulted claim. See Harris v. Reed, 489 U.S. 255,262 (1989).
"Inallcriminal prosecutions, the accused shall enjoy the right... to have the
Assistance of Counsel for his defence." U.S. Const, amend. VI.
Afederal habeas petitioner may also procedurally default a claim when the "petitioner
fails to exhaust available state remedies and 'the court to which the petitioner would be required
to present his claims in order to meetthe exhaustion requirement would now find the claims
procedurally barred.'" Breard, 134 F.3d at 619 (quoting Coleman, 501 U.S. at735 n.l). The
parties do not dispute that Hickman's claims are exhausted.
A.
Dismissal of the State Habeas Petition
The Circuit Court dismissed the State Habeas Petition based on the Supreme Court of
Virginia's ruling in Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974). Hickman v.
Commonwealth, No. CLlO-2430, at 1-2 (Va. Cir. Ct. Mar. 3, 2011). The United States Court of
Appeals for the Fourth Circuit has "held on numerous occasions that the procedural default rule
set forth in Slayton constitutes an adequate and independent state law ground for decision."
Mu'min v. Pruett, 125 F.3d 192, 196 (4th Cir. 1997) (citing cases). Thus, unless Hickman can
demonstrate either cause andprejudice or actual innocence to excuse his default, Claim One is
procedurally defaulted.
B.
Obtaining Review Despite Default
This Court may review a petitioner's procedurally defaulted claims if the petitioner
establishes either cause and prejudice or actual innocence. Breard, 134 F.3d at 620. "Cause" in
this contextmeans an "objective factor external to the defense" sufficient to thwartan actual
attempt tocorrectly file the claims instate court. McNeill v. Polk, 476 F.3d 206, 214 (4th Cir.
2007) (citing Richmond v. Polk, 375 F.3d 309, 324 (4th Cir. 2004)). Hickman bears the
responsibility to assert cause and prejudice and/or actual innocence. See Burket v. Angelone, 208
F.3d 172, 183 n.10 (4th Cir. 2000). Hickman fails to assert either. Accordingly, Claim One will
be DISMISSED.
III. INEFFECTIVE ASSISTANCE
To demonstrate ineffective assistance ofcounsel, a defendant must show first, that
counsel's representation was deficient and second, that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient
performance prong ofStrickland, the defendant must overcome the "'strong presumption' that
counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'"
Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The
prejudice componentrequires a defendant to "show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome."
Strickland, 466U.S. at 694. 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 error of constitutional dimensions."
Murray v. Carrier, 477 U.S. 478,494 (1986) (internal quotation marks omitted; emphasis
omitted). However, in analyzing ineffective assistance of counsel claims, the Courtneednot
determine whether counsel performed deficiently if the claim is readily dismissed for lack of
prejudice. Strickland, 466 U.S. at 694.
A.
Claim Two (a)
In Claim Two (a), Hickman asserts that "trial counsel filed no motions to determine the
voluntariness ofthe statement given by [Hickman]."7 (§ 2254 Pet. 4.) "[T]he United States
Supreme Court has long recognized that Mirandafy warnings are implicated only during a
custodial interrogation." Aldridge v. Commonwealth, 606 S.E.2d 539, 550 (Va. Ct. App. 2004)
It appears from Hickman's submissions that when Hickman refers to "the statement"
(§ 2254 Pet. 4; Pet'r's Resp. Mot. Dismiss 5) he is referring to is the following testimony from
Officer Livengood:
[Livengood]
I explained to Mr. Hickman that [V.M. knocking the baby
carrier to the floor] ether happened or it didn't happen and asked
him which one it was. He indicated that it didn't happen. I then
stated, "So, you made it up?"
And he said, "Yes."
(July 7, 2009 Tr. 8:16-19.)
8Miranda v. Arizona, 384 U.S. 436,467 (1966).
5
(citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Here, nothing in the record indicates
that Hickman's "freedom [had] been so restricted as to render him ... 'in custody.'" Harris v.
Commonwealth, 500 S.E.2d 257, 262 (Va. Ct. App. 1998) (citing Mathiason, 492 U.S. at 495.)
Indeed, Hickman testified that, immediately prior to making the statement in question, he spoke
on the phone and waited on a customer. (See July 7, 2009 Tr. 28:9-13.) Thus, trial counsel had
no reason to object to the admission of Hickman's statement to Officer Livengood based on a
contention that the statement was given in violation ofMiranda and, thus, was not voluntary.
Hickman cannot show deficiency based on trial counsel's failure to make a frivolous objection.
See Baker v. United States, Nos. 3:07-CR-435, 3:10-CV-762, 2011 WL 3841690, at *14 (E.D.
Va. Aug. 30, 2011). Accordingly, because Hickman fails to show deficiency, Claim Two (a)
will be DISMISSED.
B.
Claim Two (b)
In Claim Two (b), Hickman aversthat trial counsel never made a motion to strike at the
close ofthe Commonwealth's evidence. (§ 2254 Pet. 4.) Hickman asserts that, by omitting this
motion, trial counsel "fail[ed] to preserve [Hickman's] right to appeal on the alleged statement."
(Pet'r's Resp. Mot. Dismiss 5.) However, despite the fact that trial counsel failed to make this
motion, the Court of Appeals ofVirginia considered the merits of Hickman's petition for appeal.
See Hickman v. Commonwealth, No. 1733-09-2, at 1-3 (Va. Ct. App. Dec. 9,2009). Thus,
Hickman cannot show that trial counsel's omission prejudiced him. Accordingly, Claim Two (b)
will be DISMISSED.
C.
Claim Two (c)
In Claim Two (c), Hickman asserts that appellate counsel deficiently failed to "advocatfe]
[Hickman's] theory ofthe case as instructed by [Hickman]." (Pet'r's Resp. Mot. Dismiss 7.)
Specifically, "[c]ounsel for appeal never presented [Hickman's] theory that the evidence did not
meet the corpus delicti rule[9] as communicated to counsel via email." (§ 2254 Pet. 4.) "The
alleged confession by me stated by [Officer Livengood] was uncorroborated. The prosecution
must prove that corroborating evidence exists that the crime that the defendant has confessed to
did actually occur." (Pet'r's Resp. Mot. Dismiss Ex. 5.)
To establish ineffective assistance of appellate counsel, a petitioner must demonstrate
deficiency and prejudice, as required by Strickland. Bell v. Jarvis, 236 F.3d 149,164 (4th Cir.
2000). Appellate counsel is under no obligation to raise all non-frivolous issues on appeal.
Smith v. Murray, 477 U.S. 527, 536 (1986) ("[W]innowing out weaker arguments on appeal and
focusing on those more likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.") (internal quotation marks omitted). To the contrary,
appellate counsel is charged with reviewing the record and "selecting the most promising issues
for review." Jones v. Barnes, 463 U.S. 745, 752(1983). "Forjudges to second-guess reasonable
professional judgments and imposeon appointed counsel a duty to raise every 'colorable' claim
suggested by a clientwould disserve the very goal of vigorous and effective advocacy that
underlies Anders [v. California, 386 U.S. 738 (1967)]." Id. at 754. To overcome the
presumption of effective assistance of appellate counsel, petitioner must demonstrate that
ignored issues were "'clearlystronger than those presented.'" Bell, 236 F.3d at 164 (quoting
Smith v. Robbins, 528 U.S. 259, 288 (2000)).
Officer Livengood testified credibly that Hickman made a statement to him that V.M.
intentionally knocked the baby carrier to the floor. (July 7, 2009 Tr. 7:7-8.) Officer Livengood
The corpus delicti rule provides that a conviction cannotbe basedsolelyon the
uncorroborated statement of a person that a crime has occurred and that he committed it.
Downey v. Commonwealth, 716 S.E.2d 472, 475 (Va. Ct. App. 2011) (citing Hamm v.
Commonwealth, 428 S.E.2d 517, 522 (Va. Ct. App. 1993)).
then testified that Hickman admitted that the foregoing statement was false. (Id. at 8:18-19.)
V.M. then testified that, contrary to Hickman's assertions, she did not knock the baby carrier
onto the floor. (Id. at 18:10-12.)10 Subsequently, Hickman testified that V.M. "had knock [sic]
the baby down on the floor" causing him to become "so livid and so mad that that [sic] I had to
separate myself from her ...." (Id. at 20:25-21:4.) Hickman stated that he did not tell Officer
Livengood that this statement about V.M. was false. Hickman claimed that he merely told
Officer Livengood that he did not wish to make the accusation official because he had "another
way of dealing with th[e] matter." (Id. at 30:7,15-16.) Having heard this conflictingtestimony,
the Circuit Court found that Hickman made a false statementto Officer Livengood and found
Hickman guilty. (Id. at 41:23-24.) Thus, contrary to Hickman's assertions, his conviction did
notrely solely onOfficer Livengood's testimony regarding Hickman's statement11 and he cannot
Whenthe Commonwealth cross examined V.M., the following exchange occurred:
[Commonwealth]
Did you knockthe baby and the baby carriage to the floor?
[V.M.]
I did not.
[Commonwealth]
So when [Hickman] made that statement to the police, it
[V.M.]
He didn't say that I knocked the carriage. He said that I
[Commonwealth]
threw the baby to the floor.
Okay. Did you throw the baby to the floor?
No, I did not.
was false?
[V.M.]
[Commonwealth]
So when [Hickman] said you threw the baby to the floor
that was false?
[V.M.]
Yes.
(July 7, 2009 Tr. 18:10-21.)
Here, V.M.'s assertion that Hickman's accusation against her was false corroborated
Officer Livengood's testimony that Hickman contemporaneously admitted the falsity of his
accusation to Livengood. Thus, Hickman's conviction did not violate thecorpus delicti rule.
SeeDowney, 716 S.E.2d at 475 ('"[W]here the commission of the crime has beenfully confessed
by the accused only slight corroborative evidence is necessary to establish the corpus delicti.'"
(quoting Morning v. Commonwealth, 561 S.E.2d 23, 25 (Va. Ct. App. 2002)); Morning, 561
S.E.2d at 26 (finding that, where the testimony of a witness confirmed elements of the
8
demonstrate that this issue was '"clearly stronger than those presented.'" Bell, 236 F.3d at 164
(quotingSmith, 528 U.S. at 288); see also Jones, 463 U.S. at 751 (emphasizing that defendants
may not compel appellate counsel to argue specific issues on appeal). Accordingly, because
Hickman fails to show deficiency, Claim Two (c) will be DISMISSED.
IV. CONCLUSION
For the foregoing reasons, Respondent's Motion to Dismiss (Docket No. 4) will be
GRANTED. Hickman's claims will be DISMISSED and his § 2254 Petition will be DENIED.
The action will be DISMISSED.
An appeal may not be taken from the final order in a § 2254 proceeding unless a judge
issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue
unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slackv.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Hickman fails to meet this standard. Accordingly, a certificate of appealability will be DENIED.
An appropriate Order shall issue.
isL
Date:^^
James R. Spencer
United States District Judge
Richmond, Virginia
defendant's confession, sufficientcorroborative evidence existed "to establishthe corpus delicti
'when taken with the evidence of the confession.'" (quoting Claxton v. City ofLynchburg, 421
S.E.2d 891, 893-94 (Va. Ct. App. 1992))).
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