Hill v. Clarke

Filing 14

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 3/20/13. Copy sent: Yes(tdai, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

LAMAR S. HILL,

Petitioner,
v.

Civil Action No. 3:12CV174

HAROLD W. CLARKE,

Respondent.
MEMORANDUM OPINION

Lamar S. Hill, a Virginia state prisoner proceeding pro se and informa pauperis\ brings
this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his conviction in the

Circuit Court of the City of Richmond, Virginia ("Circuit Court") for possession of crack
cocaine with intent to distribute. In his § 2254 Petition, Hill argues entitlement to relief based

upon the following claims:1
Claim One:

"The Supreme Court of Virginia erred in finding that Hill was not
'in custody' for purposes of Miranda v. Arizona, 384 U.S. 436
(1966) and that the trial court properly denied his motion to

suppress" amounting to a due process violation.2 (Br. Supp.
§ 2254 Pet. 6.)

Claim Two:

"The Supreme Court erred in finding sufficient evidence supported
Hill's guilt. Where the evidence was insufficient to prove he
intended to distribute the cocaine." {Id. at 8.)

Claim Three:

The Supreme Court [o]f Virginia erred in finding
that the trial court properly allowed the statement

Hill lists his claims in bold. The Court removes the emphasis from the quotations to
Hill's submissions.

"No State shall. . . deprive any person of life, liberty, or property, without due process
of law...." U.S. Const, amend. XIV, § 1.

that Hill "has never used crack," and further erred in

finding that Hill failed to demonstrate prejudice,
where the Commonwealth did not provide the
statement in its written discovery response and this
affected trial strategy. This error constitutes a
violation of the Fourteenth Amendment of the

constitution in regard to due process.

(Id at 12.)

Claim Four:

The Supreme Court [o]f Virginia erred in finding
that the trial court properly admitted the certificate
of analysis and the cocaine where the
Commonwealth failed to establish with reasonable

assurance or certainty that the drugs analyzed and
presented at trial were the same substances and in
the same condition as recovered from Hill. This
error constitutes a violation of the Fourteenth

Amendment of the constitution in regard to due
process.

(Id at 14.)

Respondent moves to dismiss the § 2254 Petition, arguing that: (1) Hill failed to exhaust and
procedurally defaulted the due process portions of Claims Three and Four; (2) the remaining
portions of Claims Three and Four raise only issues of state law not reviewable here; and, (3)
Claims One and Two lack merit. (ECF No. 8, 10.) Hill has responded. (ECF No. 13.) The

matter is ripe for disposition. For the reasons discussed below, the Court will dismiss Claim
Two for lack of merit, will dismiss the challenges to state law in Claim Three and Four, and will
deny without prejudice the Motion to Dismiss as to Claims One, Three, and Four.
L

PROCEDURAL HISTORY

Following a bench trial, the Circuit Court convicted Hill of possession of a Schedule I or

II controlled substance3 with the intent to distribute, and sentenced him to ten years, with five
While the Circuit Court's judgment fails to list the type of drug, both parties state
throughout their submissions that Hill possessed crack cocaine.

years suspended. Commonwealth v. Hill, CR08-F-2419, at 1-2 (Va. Cir. Ct. Dec. 22, 2009).

Hill appealed this decision to the Court of Appeals of Virginia, raising largely the same claims
he advances in the instant § 2254 Petition, except that Claims Three and Four in his state appeal

merely asserted error under state law. Petition for Appeal at ii, Hill v. Commonwealth, No.
0H9-10-2 (Va. Ct. App. filed May 25, 2010). Hill failed to argue that the Circuit Court's
actions violated his federal constitutional rights with respect to Claims Three and Four. Id. The

Court of Appeals of Virginia denied the petition for appeal. Hill v. Commonwealth, No. 014910-2, at 1 (Va. Ct. App. July 21, 2010). Thereafter, a three-judge panel of the Court of Appeals

of Virginia also denied the petition. Hill v. Commonwealth, No. 0149-10-2, at 1 (Va. Ct. App.
Sept. 22, 2010). Hill raised the same claims he advanced in the Court of Appeals of Virginia
before the Supreme Court of Virginia.

Petition for Appeal 3-4, Hill v. Commonwealth,

No. 101955 (Va. filed Oct. 18, 2010). The Supreme Court of Virginia refused Hill's subsequent

petition for appeal. Hill v. Commonwealth, No. 101955, at 1 (Va. Mar. 15, 2011).
Hill filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, but
failed to use the statutorily prescribed form for habeas submissions. See Va. Code Ann. § 8.01-

655(A).4 In the Table of Contents of the Brief in Support, Hill listed thefollowing Claims Three
and Four,5 stated verbatim here:
III.

Petitioner was denied due process because court improperly allowed the
statement that Petitioner "has never used crack," and further erred in

finding that Petitioner failed to demonstrate prejudice where the
Commonwealth did not provide the statement in the written discovery
response and this affected trial strategy.

4The statute provides in relevant part: "Every petition filed by a prisoner seeking a writ
of habeas corpus must be filed on the form set forth in subsection B . . . ." Va. Code Ann. §
8.01-655(A).

5Respondent only contests the exhaustion of Claims Three and Four, thus the Court finds
it unnecessary to recite the other claims here.

IV.

Petitioner was denied due process when trial court improperly admitted
the certificate of analysis and the cocaine where the Commonwealth failed
to establish with reasonable assurance or certainty that the drugs analyzed

and presented at trial were the same substances and in the same condition
as recovered from Petitioner.

Brief in Support of Petition for Writ of Habeas Corpus 1, Hill v. Dir. Dep'tofCorr., No. 111860

(Va. filed Oct. 24, 2011) (emphasis added). In the body of his brief, Hill re-listed these claims,
but abandoned the due process element of Claims Three and Four. See id. at 1, 12, 15. The

Supreme Court of Virginia dismissed the petition, finding all of the claims barred by the rule of

Henry v. Warden, Riverside Reg'l Jail, 576 S.E.2d 495 (Va. 2003),6 because the issues were
raised or decided in the trial court or on direct appeal. Hill v. Dir. Dep't ofCorr., No. 111860, at
l(Va. Jan. 17,2012).
II. THE APPLICABLE CONSTRAINTS UPON
FEDERAL HABEAS CORPUS REVIEW

In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that

he is "in custody in violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996
further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus.

Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted
only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 (4th Cir. 2008)

(citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may

6 "[A] non-jurisdictional issue raised and decided either in the trial or on direct appeal
from the criminal conviction will not be considered in a habeas corpus proceeding." Henry, 576
S.E.2dat496.

not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state
court unless the adjudicated claim:

(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. § 2254(d). The Supreme Court has emphasized that the question "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. Landrigan, 550
U.S. 465, 473 (2007) (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
III. SUFFICIENCY OF THE EVIDENCE

In Claim Two, Hill argues that the Supreme Court of Virginia erred in finding that
sufficient evidence supported Hill's conviction of possession of crack cocaine with intent to

distribute. (Br. Supp § 2254 Pet. 8-11.) A federal habeas petition warrants relief on a challenge
to the sufficiency of the evidence only if "no rational trier of fact could have found proof of guilt
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). The relevant
question in conducting such a review is whether, "after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." Id. at 319 (citing Johnson v. Louisiana, 406 U.S. 356,

362 (1972)). The critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction is "whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt." Id. at 318.

The Court of Appeals of Virginia aptly summarized the evidence leading to Hill's arrest
as follows:

At 9:02 p.m. on January 26, 2008, Officer Black and his partner, Officer
Custer, effected a traffic stop[ ] of a car in which the appellant was a passenger.
The location of the stop was a high-crime area. Black smelled the odor of
marijuana emanating from the car, so he and Custer had the driver and appellant
exit the car. Black detained and handcuffed the driver, and Custer detained and

handcuffed appellant. The officers had both men wait at the rear of their car.
Detective Phillips arrived shortly after the men were handcuffed. Black and
Custer advised Phillips they detected the odor of marijuana.
Phillips had a partner with him, but the partner, Detective Marsh,
remained in Phillips' police car and never exited or got involved. Phillips
approached appellant and detected a strong odor of marijuana on his person.
During a weapons pat down, Phillips felt a small round lump inside appellant's
pants near his inside thigh and asked appellant what it was. Appellant said it was
a little bag of "hard," which is slang for crack cocaine. Phillips then asked
appellant if he (appellant) could retrieve it, which appellant did. The bag
appellant removed from his pants contained two plastic baggies, one with a piece
of suspected crack cocaine and the other contained suspected marijuana. Fifteen
minutes after the traffic stop was initiated, Phillips advised appellant of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966).
Hill v. Commonwealth, No. 0149-10-2, at 2 (Va. Ct. App. July 21, 2010).

In finding sufficient evidence to convict Hill, the Court of Appeals of Virginia
explained:

After being advised of his Miranda rights, appellant admitted selling crack
cocaine and told [Detective] Phillips "[h]e has never used crack." Appellant said
he only sells to "feigns," slang for addicted users, and stated he did so to make
money for his family. There was no evidence the police found paraphernalia with
which to personally consume the crack cocaine.

7During the exclusion hearing, Detective Phillips testified that a cooperating informant
provided information prior to the traffic stop of Hill that Hill possessed contraband. (Mar. 20,
2009 Tr. 10.) Detective Brandon Black also testified that while working patrol he received a
phone call to keep an eye out for a vehicle with Hill as passenger and to attempt to make a traffic
stop. (Mar. 20, 2009 Tr. 36.) Detective Black observed the vehicle and "[i]t rolled the stop
sign" and then "made the right hand turn onto O Street failing to signal." (Mar. 20, 2009 Tr. 36.)
Based upon these traffic infractions, Detective Black initiated the traffic stop. (Mar. 20, 2009
Tr. 37.)

In addition to appellant's admission that he sold crack cocaine and his
denial that he consumed it, the police found crack cocaine hidden on appellant's
person, and they did not recover any pipes or other paraphernalia suggestive of
personal use. That evidence sufficiently corroborated appellant's incriminating
admission. Accordingly, the trial court did not err in finding sufficient competent
and credible evidence to prove appellant's guilt beyond a reasonable doubt.

Id. at 4-5 (second alteration in original). Considering the evidence "in the light most favorable
to the prosecution, [a] rational trier of fact could have found" that Hill possessed crack cocaine
with the intent to distribute it. Jackson, 443 U.S. at 319 (citing Johnson, 406 U.S. at 362).
Accordingly, the Court will dismiss Claim Two.
IV. MOTION TO SUPPRESS

In Claim One, Hill contends that the Supreme Court of Virginia erred in finding the

Circuit Court properly denied Hill's motion to suppress and finding Hill "was not 'in custody'

for purposes of Miranda v. Arizona, 384 U.S. 436 (1966)." (Br. Supp. § 2254 Pet. 6 (emphasis
added).) Hill claims that because the officers smelled marijuana, required Hill to step out of the
car, placed Hill in handcuffs, and then asked him about the lump in his pocket, "a reasonable

person in his position would believe he or she was indeed in custody." (Id. at 7.) Hill argues
that when he made the statement "'it was just a little bag of hard,'" he "was in custody." Thus he
argues that this statement, made before his formal arrest, "should have been suppressed." (Id. at
8.)

In his brief, Respondent provides little more than the legal standard for habeas review of

suppression claims. Respondent states that the Court of Appeals of Virginia found the trial court

committed no error in denying Hill's motion to suppress and finding Hill was not in custody for
purposes of Miranda, and that the Court of Appeals' decision was not contrary to or based on an

unreasonable applicationof federal law or an unreasonable interpretation of the facts. (Br. Supp.

Mot. Dismiss 10-11.) Respondent cites scant legal authority and argument to support that

conclusion.8 Due to Respondent's insufficient briefing, the Court will deny without prejudice
Respondent's motion to dismiss Claim One.
V. STATE LAW CLAIMS

In Claims Three and Four, Hill alleges a violation of Supreme Court of Virginia Rule

3A: 11(b)9 and challenges an evidentiary ruling regarding the admission of a certificate of
analysis based upon state law. Claims resting upon an interpretation of state law provide no
basis for federal habeas relief.

Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998); see

Spencer v. Murray, 5 F.3d 758, 762 (4th Cir. 1993) (a determination of the admissibility of

evidence is a matter of state law and procedure). Accordingly, the state law portions of Claims
Three and Four will be dismissed.
VI. ALLEGATIONS OF PROCEDURAL DEFAULT

A.

Applicable Law

Before a state prisoner can bring a § 2254 petition in federal district court, the prisoner
must first have "exhausted the remedies available in the courts of the State."

28 U.S.C.

§ 2254(b)(1)(A). State exhaustion "'is rooted in considerations of federal-state comity,'" and in
Congressional determination via federal habeas laws "that exhaustion of adequate state remedies

will 'best serve the policies of federalism.'" Slavek v. Hinkle, 359 F. Supp. 2d 473, 479 (E.D.
Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n.10 (1973)). The purpose of

Generally, no Miranda custody exists for a person detained as a result of a traffic stop
because this type of detention fails to "sufficiently impair [the detained person's] free exercise of
his privilege against self-incrimination to require that he be warned of his constitutional rights."
See Howes v. Fields, 132 S. Ct. 1181, 1190 (2012) (alteration in original) (quoting Berkemer v.
McCarty, 468 U.S. 420, 437 (1984)). The Court declines to make such a determination here due
to the limited briefing by Respondent.

9 The Rule provides in relevant part: "Upon written motion of an accused a court shall
order the Commonwealth's attorney to permit the accused to inspect and copy or photograph"
certain documents, reports, and other items. Va. Sup. Ct. R. 3A: 11(b).
8

the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct

alleged violations of its prisoners' federal rights." Picardv. Connor, 404 U.S. 270, 275 (1971)
(internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize
all available state remedies before he can apply for federal habeas relief. See O'Sullivan v.
Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state

remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the

remedies available in the courts of the State ... if he has the right under the law of the State to
raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

The second aspect of exhaustion requires a petitioner to have offered the state courts an
adequate opportunity to address the constitutional claims advanced on federal habeas.

"To

provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in
each appropriate state court (including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541

U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). Fair presentation
demands that "'both the operative facts and the controlling legal principles'" must be presented
to the state court. Longworth v. Ozmint, 3>11 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v.
Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been

exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner.
Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).

"A distinct but related limit on the scope of federal habeas review is the doctrine of
procedural default." Breardv. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine 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." Id.
(citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also
procedurally defaults claims 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 meet the
exhaustion requirement would now find the claims procedurally barred.'" Id. (quoting Coleman,

501 U.S. at 735 n.l).10 The burden of pleading and proving that a claim is procedurally
defaulted rests with the state. Jones v. Sussex I State 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 the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262

(1989).
B.

Respondent Fails to Demonstrate Default of Claims Three and Four

Respondent argues that Hill "defaulted" the due process elements of Claims Three and

Four "because Hill never advanced a due process violation in state court." (Br. Supp. Mot.

Dismiss 6.) Respondent provides no argument regarding why Hill failed to exhaust Claims
Three and Four, and identifies no state law ground that would procedurally bar Hill's claim in
state court.

As noted previously, see Part I, supra, on direct appeal Hill raised versions of Claims
Three and Four that relied upon the same underlying facts, but only asserted error under state

law. Nevertheless, in his habeas petition filed with the Supreme Court of Virginia and in the
Table of Contents of the accompanying brief, Hill clearly included a due process violation as an

10 Under these circumstances, even though the claim has not been fairly presented to the
Supreme Court of Virginia, the exhaustion requirement is "technically met." Hedrick v. True,
443 F.3d 342, 364 (4th Cir. 2006) (citing Gray v. Netherland, 518 U.S. 152, 161-62 (1996)).

10

aspect of Claims Three and Four.11 See Petition for Writ of Habeas Corpus ffi| 9-10, Hill v. Dir.
Dep't ofCorr., No. 111860 (Va. filed Oct. 24, 2011); Brief in Support of Petition for Writ of
Habeas Corpus 1, Hill v. Dir. Dep't ofCorr., No. 111860 (Va. filed Oct. 24, 2011). Although
the Supreme Court of Virginia failed to address these claims, Respondent provides no argument

regarding why Hill's presentation of the due process claims in his state habeas petition and in the
Table of Contents of his accompanying brief failed to fairly present the substance of Hill's claim

to the Supreme Court of Virginia. See Kasi v. Angelone, 300 F.3d 487, 509 (4th Cir. 2002)
("'[I]t is the petitioner's argument to the court rather than the court's decision that is
dispositive'" of the exhaustion issue, (quoting Weeks v. Angelone, 176 F.3d 249, 262 (4th Cir.
1999))).

Respondent fails to demonstrate that, under these circumstances, Hill should be required
to return to state court to exhaust Claims Three and Four, much less that the claims are barred

from review here. See Hicks v. Johnson, No. 3:09CV413, 2010 WL 3665682, at *2 (E.D. Va.

Sept. 9, 2010). Because Respondent fails to meet his burden of proving procedural default, the
Court declines to find Claims Three and Four defaulted. Accordingly, the Motion to Dismiss on
Claims Three and Four will be denied without prejudice.
VII. CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 8) will be
GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.

Claim Two will be

DISMISSED. Respondent will be directed, within thirty (30) days of the date of entry hereof, to

11 The Court notes that Hill misrepresented to the Supreme Court of Virginia that he
"raised the four issues of due process in the trial court" and he "presented the four issues of
denial of due process to the Virginia Court of Appeals." See Petition for Writ of Habeas Corpus
H 11, Hill v. Dir. Dep't ofCorr., No. 111860 (Va. filed Oct. 24, 2011). This misrepresentation,
however, has no bearing on whether he raised the due process claims in the Supreme Court.
11

file a further response, which may raise any procedural defenses and must address the merits of
Hill's remaining claims.

An appropriate Order shall issue.
/s/

JohnA.Gibney^Tr.

Date: V W^

United States District Judge

Richmond, Virginia

12