Herring v. Clarke

Filing 70

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 04/14/2016. Copy mailed to Petitioner on 4/15/2016.(tjoh, )

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

APR 1 5
CLLHK. U.S.
COl
RlCHWOi^D. VA

ROBERT MICHAEL HERRING,
Petitioner,
V.

Civil Action No. 3:13CV326

HAROLD CLARKE,

Respondent.
MEMORANDUM OPINION

Robert Michael Herring, a Virginia state prisoner proceedingpro se and informa

pawpem, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his
conviction in the Circuit Court of the City of Chesapeake, Virginia ("Circuit Court").

Respondent moves to dismiss the § 2254 Petition. (ECF No. 54.) Herring has responded. (ECF
No. 58.) On January 15, 2015, Respondent consented to the jurisdiction of the Magistrate Judge.

(ECFNo. 50.) On January 20, 2015, Herring returned his consentto the jurisdiction of the
Magistrate Judge form that indicated that he declined consent; however, the matter was
mistakenly referred to the Magistrate Judge for all proceedings. By Memorandum Opinion and
Final Order entered on October 5, 2015, the Magistrate Judge granted Respondent's Motion to
Dismiss and denied Herring's § 2254 Petition. (ECF Nos. 62-63.)
On March 22, 2016, the United States Court of Appeals for the Fourth Circuit vacated

and remanded the action because Herring had declined consent to the Magistrate Judge's

jurisdiction, and thus, the Magistrate Judge improperly handled the proceedings. Herring v.
Clarke, No. 15-7779, 2016 WL 1104083, at *1 (4th Cir. Mar. 22, 2016). The Fourth Circuit

vacated the Magistrate Judge's dismissal order and remanded for further proceedings.

The matter is ripe for disposition. As explained below, the Court finds that Herring's
claims lack merit for the same reasons as the previously explained by the Magistrate Judge.
I. PROCEDURAL HISTORY

Following a bench trial, the Circuit Court convicted Herring of breaking and entering and

petit larceny, and sentenced him to an active term of four years of incarceration. Commonwealth
V. Herring, Nos. CRlO-1797-00 and CRlO-1797-01, at 1-3 (Va. Cir. Ct. May 18,2011). Herring
appealed. The Court of Appeals of Virginia denied the petition for appeal. Herring v.
Commonwealth, No. 1605-11-1, at 1 (Va. Ct. App. Nov. 16,2011). The Supreme Court of

Virginia refused Herring's subsequent petition for appeal. Herring v. Commonwealth,
No. 112220, at 1 (Va. May 31, 2012).

Herring filed a petition for a writ of habeascorpus in the Supreme Court of Virginia

raising forty-three claims of ineffective assistance of counsel. Petition for Writ of Habeas
Corpus at 1-50, Herring v. Dir. ofthe Dep 't ofCorr., No. 121663 (Va. filed Oct. 1, 2012).
Finding that Herring failed to demonstrate ineffective assistance of trial counsel, the Supreme
Court of Virginia dismissed his petition. Herring v. Dir. ofthe Dep't ofCorr., No. 121663,at 123 (Va. Mar. 20, 2013).

In May 2013, Herring filed the instant § 2254 Petition. By Memorandum Opinion and
Order entered June 24, 2014, the Court dismissed the action without prejudice because Herring

failed to keep the Court apprised of his current address. On July 11, 2014, Herring moved for
reconsideration pursuant to Federal Rule of Civil Procedure 59(e). By Memorandum Opinion
and Order entered January 16, 2015, the Court granted his motion, vacated the dismissal order,
and re-opened the action. (ECF Nos. 48-49.)

In his nearly 160-page § 2254 Petition, Herring fauhs counsel for purported errors that

have little to no bearing on Herring's guilt, which is obvious from the record. Herring's main
themes stem from his ongoing belief that the search of a house that he claims was not his

residence violated the Fourth Amendment,' thatthe Commonwealth engaged in prosecutorial
misconduct by arresting him for different crimes than he was ultimately charged with and
convicted of, and that he told Chris Averitt to go to Greenbrier Farms, not Basnight Land and

Lawn. Herring insists that counsel should have objected on frivolous grounds to almost every

aspect of the Commonwealth's evidence and the prosecutor's fair summary of that evidence. In
his repetitive claims. Herring contends that counsel rendered ineffective assistance on the

following grounds:^
Claim 1:

Counsel failed to object to the warrantless search of Petitioner's residence.

Claim 3:

Counsel failed to object to Petitioner's false arrest without a warrant or
indictment.

Claim 4:

Counsel failed to object at the preliminary hearing to Petitioner's unlawfiil
search and seizure.

Claim 5:

Counsel failed to object at the preliminary hearing to Petitioner's false
arrest without a warrant or indictment.

Claim 6:

Counsel failed to have the preliminary hearing recorded by a certified
court reporter.

1

'The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated

" U.S. Const, amend. IV.

^"Inallcriminal prosecutions, the accused shall enjoy the right... to have the Assistance of
Counsel for his defence." U.S. Const, amend. VI.

^The Court notes that Herring keeps his claims numbered as they were in his state habeas
petition; however, he indicates that he "withdraws" from federal review Claims 2, 11, 12, 13, 32,
33, and 34. The Court employs the pagination assigned by the CM/ECF docketing system to
Herring's submissions. The Court omits the emphasis in the quotations from Herring's
submissions.

Claim 7:

Counsel "failed to object to the nolle prosequi of the charge of possession
of stolen property. . . . Counsel should have demanded an out right
dismissal." (§ 2254 Pet. 12.)

Claim 8:

"Counsel failed to object that the two felony charges that were certified to
the Circuit Court were not the charges that were returned by the Grand
Jury." {Id.)

Claim 9:

Counsel failed to object to the Commonwealth's use of perjured testimony

before the grand jury thereby violating Herring's right to due process."*
Claim 10:

Counsel failed to move for dismissal of the grand jury indictments because
"both of the indictments were had by the [Commonwealth's] knowing use
of improper tactics." {Id. at 14.)

Claim 14:

Counsel failed to object during trial that police conducted an illegal search
of Herring's residence.

Claim 15:

Counsel failed to object during trial to the Commonwealth's witness's
statement that he recovered two laptop computers from Herring's
residence.

Claim 16:

Counsel failed to object "at trial that the prosecution of [Herring] for
Grand Larceny and Nighttime burglary violated due process of law
because the [Commonwealth] knew that said crimes were actually
committed by one Chris Averett [sic]." {Id. at 17.)

Claim 17:

Counsel "at trial failed to competently object and argue that the

petitioner's possession of some stolen property about ninety (90) days
after the Basnight burglary did not support the [Commonwealth's]
argument that [Herring] could be prosecuted for burglary and grand
larceny." {Id. at 21.)

Claim 18:

Counsel "failed to object at trial to the [Commonwealth's] false statement

that [Herring] had told Chris Averitt to commit the crimes of burglary and
grand larceny at the Basnightbusiness." {Id. at 22.)
Claim 19:

"Counsel at trial failed to object to the [Commonwealth's] false statement
to the Court that [Herring] 'set the whole thing up.'" {Id. at 23.)

Claim 20:

"Counsel failed to object at trial when the [Commonwealth] . . . argued
that [Herring] was a principal or accessory or 'set up' the crime at the
Basnight business." {Id. at 24.)

^"No State shall... deprive any person of life, liberty, or property, without due process of
law

" U.S. Const, amend. XIV, § 1.

Claim 21:

"Counsel failed to object at trial to the [Circuit] Court's statement that
[Herring] had sent Chris Averitt to the Basnight business with the intent to
commit crimes at that location." (Jd. at 25.)

Claim 22:

"Counsel at trial failed to object to the [Commonwealth's] false statement
that [Herring] had 'inside knowledge' about property at the Basnight
business and 'how to get them.'" {Id. at 26.)

Claim 23:

"Counsel at trial failed to object to the [Commonwealth's] improper
argument that the [Herring] was an accessory before the fact to the crimes
that were committed by Chris Averitt at the Basnight business." {Id. at
28.)

Claim 24:

"Counsel failed to object at trial to the [Commonwealth's] false and
misleading statements that [Herring] was a principal and acting in concert
with Chris Averitt, and that [Herring] was liable for Averitt's crimes,"
{Id at 29.)

Claim 25:

Counsel failed to object to the Circuit Court's denial of Herring's motion
to strike.

Claim 26:

"Counsel failed to object at trial to the [Circuit] Court's remarks about
'conspiracy.'" {Id. at 33.)

Claim 27:

"Counsel at trial failed to object to the [Commonwealth's] improper
remarks about the concert of action theory." {Id. at 34.)

Claim 28:

"Counsel failed to object at trial to the [Commonwealth's] false and
misleading statement that [Herring] 'told Mr. Averitt to go and steal those
items ....'" {Id at 36.)

Claim 29:

"Counsel failed to object at trial that the [Commonwealth] had no legal
right to use the testimony of the unconvicted felon Timothy Adams
against [Herring]." {Id. at 37.)

Claim 30:

Counsel failed to object "that the [Circuit] Court had no legal right to
convict [Herring] of petit larceny, an uncharged crime." {Id. at 40.)

Claim 31:

Counsel failed to object that Herring "had a due process right to be
convicted or acquitted on the indictment for grand larceny, and not to be
convicted of any other crime." {Id. at 41.)

Claim 35:

Counsel "presented an incompetent motion to strike the burglary
conviction" during sentencing. {Id. at 42.)

Claim 36:

Counsel "was ineffective" during sentencing "when counsel told the Court
that [Herring] was involved in the Basnight Land and Lawn burglary."
{Id. at 43.)

Claim37:

Appellate counsel was ineffective when he stated in the Court of Appeals
of Virginia that Herring "had been convicted as 'an accessory before the
fact of burglary and grand larceny' when [Herring] had not been convicted
of those crimes." {Id. at 44.)

Claim 38:

Appellate counsel was ineffective when he stated in the Supreme Court of
Virginia that Herring "had been convicted as 'an accessory before the fact
of burglary and grand larceny' when [Herring] had not been convicted of
those crimes." {Id. at 47.)

Claim39:

Appellate counsel "failed to attack the voidjudgment of conviction for the
crime of petit larceny" in the Court of Appeals of Virginia. {Id. at 50.)

Claim 40:

Appellate counsel "failed to attack the void judgment of conviction for the
uncharged crime of petit larceny" in the Supreme Court of Virginia. {Id.
at 51.)

Claim 41:

"Counsel was ineffective at trial for failure to competently argue against

the [Commonwealth] implying that [Herring] was an accessory before the
fact of burglary. [Herring] was not charged for accessory before the fact
of any crime." {Id. at 52.)

Claim 42:

Appellate counsel improperly focused his argument in the Court of
Appeals of Virginia on Herring "being an accessory before the fact of
burglary and grand larceny when [Herring] had not been convicted of
being an accessory to either crime." {Id. at 55.)

Claim 43:

Appellate counsel improperly focused his argument in the Supreme Court
of Virginia on Herring "being an accessory before the fact of burglary and
grand larceny when [Herring] had not been convicted of being an
accessory to either crime." {Id. at 57.)

Herring also filed a document entitled "Facts in Support" as an attachment to his lengthy § 2254
Petition. (§ 2254 Pet. Attach., ECF No. 1-1.) This document provides Herring's reasons why he
believes the Supreme Court of Virginia either erred in its conclusion, or—in some instances, in
contradiction to his § 2254 Petition—^the Supreme Court of Virginia made no error. {See, e.g..

§ 2254 Pet. Attach. 4.) For the reasons discussed below, the Court finds that Herring's claims
lack merit.
11.

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, "[sjtate 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 courtmay

not grant a writ of habeas corpus based on any claim thatwas 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.

EVIDENCE AGAINST HERRING

Because many of Herring's claims challenge the Commonwealth's evidence of his guilt,
the Court first summarizes the evidence against Herring presented during trial. On appeal.

Herring challenged the sufficiency of the evidence to support a conviction of burglary and petit

larceny, and as an accessory before the fact of both crimes. Herring v. Commonwealth,
No. 1605-11-1, at 1-2 (Va. Ct. App. Nov. 16, 2011) (ECF No. 56-1). The Court of Appeals of
Virginia aptly explained:
So viewed, the evidence proved that in February 2010, Christian Conner
ran the daily operations of Basnight Land and Lawn Service, Tidewater Mulch
and Material, and Greenbrier Farms and Nursery. On February 9, 2010, Conner
secured all doors, windows, and gates of the business as he was leaving. On
February 10,2010, Conner arrived at work and noticed that the lock appeared to
have been "crushed." He also noticed a couple of farm carts were out of place.

Upon entering the office, Conner found 'drawers from the desk opened, papers
strewn all over the place [and] . . . some laptop computers missing." He
determined that the following items were missing: eight laptop computers, two
or three flat screen televisions, a computer built for the television monitors, and
ten digital cameras.
Conner testified that appellant used to work at Greenbrier Farms and
Nursery, but was not working there in February 2010.
Detective Timothy Adams investigated the matter and obtained a search
warrant on May 12, 2010 for appellant's residence. Adams recovered two

computers that were stolen from Basnight Land and Lawn Service. After
advising appellant of his Miranda rights, Adams asked appellant where he got
the two computers. Appellant told Adams that they came from Greenbrier
Farms, and he admitted to knowing that they were stolen. Appellanttold Adams
that he received a telephone call from Chris Averitt. Adams testified that
appellant told him the following: "Chris was complaining that he did not have
any money and was looking for some stuff to steal. Robert stated he told Chris

to go down to Greenbrier Farms to check out the stuff down there." A couple
of days later, Averitt called appellant and told him that he went to Greenbrier
Farms and he had two laptop computers that he could not use. Averitt asked
appellant if he wanted the laptops, and appellant took them.

The trial court found appellant guilty of burglary and petit larceny.[^]
He was sentenced to ten years, with all but three years suspended, on the
burglary charge and twelve months on the petit larceny charge.
Appellant argues that the evidence was insufficient to convict him as an
accessory before the fact to burglary and larceny.
We have previously defined an accessory as "one not
present at the commission of the offense, but who is in
some way concerned therein, either before or after, as [a]
contriver, instigator or advisor, or as a receiver or
protector of the perpetrator." This definition mandates

^ Although appellant was charged with grand larceny, the trial court found
appellant guilty of petit larceny because there was a question as to whether the
Commonwealth proved that the items taken were worth more than $200.
8

that in the trial of an accessory before the fact the
Commonwealth establish the following elements beyond
a reasonable doubt: the commission of the crime by the
principal, the accessory's absence at the commission of
the offense, and that before the commission of the crime,
the accessory was "in some way concerned therein ... as
[a] contriver, instigator or advisor."
McGhee v. Commonwealth, 221 Va. 422, 425-26, 270 S.E.2d 729, 731 (1980)
(quoting Tolley v. Commonwealth, 216 Va. 341, 348, 218 S.E.2d 550, 555
(1975)) (internal citations omitted).
Appellant contends that he simply had a casual conversation with Averitt
and was not a "contriver, instigator or advisor." Id. However, the evidence
proved that appellant knew Averitt needed money and wanted to steal
something. Appellant then told Averitt to go to Greenbrier Farms because he
could find something there to steal. After Averitt stole items from Greenbrier
Farms, he called appellant and asked him if he wanted two of the stolen laptop

computers. Appellant took the items. Although appellant was not present when
Averitt took the items, appellant was the one who advised Averitt where to go to
steal the items and knew that Averitt took them.

Accordingly, the evidence was sufficient to prove that appellant was
guilty beyond a reasonable doubt of burglary and petit larceny.
//errmg. No. 1605-11-1, at 1-3.
IV.

INEFFECTIVE ASSISTANCE

To demonstrate ineffective assistance of counsel, a convicted defendant must show, first,

that counsel's representation was deficient and, second, that the deficient performance prejudiced
the defense. Stricklandv.

466 U.S. 668, 687 (1984). To satisfy the deficient

performance prong ofStrickland, the convicted defendant must overcome the "'strong

presumption' that counsel's strategy and tactics fall 'within the wide range ofreasonable
professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting
Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show
that there is a reasonable probability that, but for counsel's unprofessional errors, the result ofthe

proceeding would have been different. Areasonable probability is a probability sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective

assistance of counsel claims, it is not necessary to determine whether counsel performed
deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.
A.

Failure to Raise Fourth Amendment Challenges

In Claims 1, 3,4, and 5, Herring faults counsel for failing to challenge his search, seizure
and arrest on Fourth Amendment grounds. Similarly, in Claims 14 and 15, Herring faults

counsel for failing to object to testimony at trial about the search and seizure of the computers.

Herring's claims are repetitive and difficult to follow. The Court begins its analysis out of order
in an effort to make sense of Herring's claims.

In aptly summarizing and rejecting Herring's convoluted argument in Claims 14 and 15,
the Supreme Court of Virginia explained:

In claim (14), petitioner contends he was denied the effective assistance of
counsel when counsel failed to object at trial that police conducted an unlawful

search of petitioner's trailer. Petitioner contends the search warrant did not
mention a "camper trailer."

The Court holds that claim (14) satisfies neither the "performance" nor the

prejudice" prong of the two-part test enunciated in Strickland. The record,
including the trial transcript, demonstrates that no evidence offered at trial was
identified as having come from petitioner's trailer, nor has petitioner identified
any evidence fi*om the trailer to which counsel should have objected. 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 proceedingwould have been different.
In claim (15), petitioner contends he was denied the effective assistance of
counsel when counsel failed to object at trial when Detective Adams testified that
he recovered two laptop computers fi'om the residence police searched pursuant to
the search warrant. Petitioner contends that counsel's failure deceived the court
into thinking petitioner lived at the house.

. . . The record, including the trial transcript, demonstrates that petitioner

was in possession of the stolen property and admitted he knew the property had
been stolen. Therefore, the location of petitioner's residence was irrelevant.

Moreover, petitioner fails to proffer any support for his claim that the residence
police searched was not his. 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.

10

Herring v. Dir. ofthe Dep't ofCorr., No. 121663, at 8-9 (Va. Mar. 20, 2013) (ECF No. 56-6).
In Claim 1, Herring argues that counsel failed to object to the purported warrantless
search of his residence. In rejecting Claim 1, the Supreme Court of Virginia explained:

The record, including the trial transcript, demonstrates that police had a warrant to
search petitioner's residence. Counsel was not ineffective for failure to make a
meritless argument to the contrary. 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.
Id. at 1-2.

In Claim 3, Herring fauhs counsel for failing to object to his purported false arrest
without a warrant or indictment. Similarly, in Claim 5, Herring faults counsel for failing to

object at the preliminary hearing to Herring's purported false arrest without a warrant or
indictment. In rejecting Claims 3 and 5, the Supreme Court of Virginia found:
The record, including the trial transcript, demonstrates that petitioner confessed to

knowingly possessing the stolen property that was found in his home. Counsel
could reasonably have determined petitioner's arrest was supported by probable
cause and an arrest warrant was unnecessary. See [Va.] Code [Ann.] § 19.2-81.

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.
Id. at 2-3; id. at 3-4.

Finally, inClaim 4, Herring claims that counsel failed to object atthe preliminary hearing

to the purported unlawful search and seizure. The Supreme Court ofVirginia determined this
claim lacked merit, explaining: "The record, including the trial transcript, demonstrates that the

police operation was conducted pursuant to a search warrant. Thus, petitioner has failed to
demonstrate thatcounsel'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." Id.
at 3.

11

The Court discerns no unreasonable application of the law and no unreasonable

determination of the facts in the Supreme Court of Virginia's rejection of these six claims. See
28 U.S.C. § 2254(d)(l)-(2). For his claims relating to the search and seizure, Herring now
presents a convoluted argimient that the Supreme Court of Virginia erred in its conclusion that a
search warrant existed for Herring's "residence." Herring claims "the Court made the false
statement that the police had a search warrant for the petitioner's 35ft. camper-trailer in which

the petitioner lived

The trial record shows the police only had a search warrant for the house

located at 357 Great Bridge Blvd., Chesapeake, Virginia, but the petitioner did not live at that

house." (§ 2254 Pet. Attach. 1, ECF No. 1-1.) At trial. Detective Timothy Adams testified that
when he executed the search warrant at 357 Great Bridge Boulevard, Herring was physically

present in thehouse and Detective Adams found two stolen computers in thehouse. (Nov. 23,
2010 Tr. 18-20.) While Herring now challenges the Supreme Court of Virginia's use of the term
"residence" to describe 357 Great Bridge Boulevard, the record demonstrates that Herring was in
the house when the search warrant was executed. Herring also fails to offer who actually lived in

the house orput the stolen computers inthe house if he did not. To the contrary. Herring
admitted to Detective Adams that he knowingly possessed the stolen computers. (Nov. 23,2010

Tr. 20.) Inlight ofthe valid search warrant and Herring's physical presence inthe house,
counsel reasonably eschewed raising a meritless challenge toa "warrantless" search at any time
during the course of the criminal proceedings.
For similarreasons, counsel also reasonably eschewed challenging Herring's purported
false arrest without a warrant or indictment. Herring first reiterates his contention that the

Supreme Court ofVirginia erred because they incorrectly categorized the place where the
computers were found as Herring's "home" and no computers were found in his "35 ft. camper

12

trailer" where he lived. (§ 2254 Pet. Attach. 2-3.) This argument lacks merit. After executing
the search warrant, Detective Adams advised Herring of his Miranda rights. Herring stated that
he understood his rights, and then he admitted to Detective Adams that the two computers found
in the house were from Greenbrier Farms and they were stolen. (Nov. 23, 2010 Tr. 20.) Herring

then requested to go to the Chesapeake Police Department and subsequently, provided a

statement implicating himself in the theft. (Nov. 23,2010 Tr. 20-22.) To the extent Herring

claims counsel should have challenged his arrest without a warrant, this claim also lacks merit.
No need existed for Detective Adams to have an arrest warrant because Herring's arrest was

supported by probable cause. See United States v. Williams, 10 F.3d 1070,1073-74 (4th Cir.
1993) (citing Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Accordingly, Claims 1, 3,4, 5,
14 and 15 will be DISMISSED.

B.

Claims Related to Preliminary Hearing and Grand Jury

Next, in Claim 6, Herring faults counsel for failing to have a court reporter record the

preliminary hearing "for ftirther use attrial." (§ 2254 Pet. 10.) In aptly summarizing Herring's
claim and finding it lacked merit, the Supreme Court of Virginia explained:
Petitioner contends the testimony that Detective Timothy Adams gave the

magistrate to obtain warrants for possession of stolen property and conspiracy
materially differed from his testimony at trial that petitioner committed statutory
burglary and grand larceny. Petitioner contends counsel could have used a
recording to impeach Adams.

The Court holds that [C]laim (6) satisfies neither the "performance" nor

the "prejudice" prong of the two-part test enunciated in Strickland. The record,
including the trial transcript, demonstrates that Adams' trial testimony consisted
of describing the items police found in a search of petitioner's home and
petitioner's confession to and explanation for possessing those items. Adams did
not testify regarding the nature of the charges against petitioner. Petitioner has
therefore failed to show a material difference in Adams' testimony with which

counsel could have impeached Adams. Thus, petitioner has failed to demonstrate

that counsel's performance was deficient or that there is a reasonable probability
that, butfor counsel's alleged errors, the result of the proceeding would have been
different.

13

Herrings No. 121663, at 4. Predictably, Herring again takes issue with the Supreme Court of
Virginia's statement that the stolen items were found in Herring's "home" because "[n]o stolen
property was ever found in the petitioner's camper-trailer." (§ 2254 Pet. Attach. 3.) Beside his
disagreement with the Supreme Court's use of the term "home" to identify the place searched.

Herring fails to identify, and the Court fails to discern, an unreasonable application of the law or
an unreasonable determination of the facts in the Supreme Court of Virginia's rejection of
Claims 6. See 28 U.S.C. § 2254(d)(lH2). Claim 6 will be DISMISSED.

In the next series of claims, Herring challenges the grand jury proceedings and the

indictments. In Claim 7, Herring faults counsel for failing "to object to the nolle prosequi of the

charge of possession of stolen property.... Counsel should have demanded "an outright
dismissal." (§ 2254 Pet. 12.) In Claim 8, Herring faults counsel for failing "to object thatthe
two felony charges that were certified to the Circuit Court were not the charges thatwere

returned by the Grand Jury." {Id.) Inthe attachment to his § 2254 Petition, Herring concedes
that he "admits thatthe Virginia Supreme Court's decision to [Claim 7 and 8] is correct."

(§ 2254 Pet. Attach. 4.) Because Herring identifies no error inthe Supreme Court ofVirginia's
resolution of these claims, Claims 7 and 8 will be DISMISSED.

In Claim 9, Herring argues that counsel failed to object to "the [Commonwealth's] use of

knowing peijury by [its] witness Det. Becky M. Roberson before the Grand Jury" when she
testified that Herring had committed the burglary and larceny that occurred at Basnight Land and
Lawn when he actually told police thatthe crimes occurred at Greenbrier Farms. (§ 2254

Pet. 13.) Similarly in Claim 10, Herring argues that counsel failed to move for dismissal ofthe

grand jury indictments because "both ofthe indictments were had by the [Commonwealth's]
knowing use of improper tactics" because Herring made the statement that the crimes occurred at

14

Greenbrier Farms, but Detective Roberson testified to the grand jury that Herring committed the
crimes at Basnight Land and Lawn. (§ 2254 Pet. 14.) As discussed further below, the
underlying premise for these claims is entirely meritless.

In the Supreme Court of Virginia, in Claims 9 and 10, Herring argued that counsel failed
to object to the Commonwealth's "change of story." Petition for Writ of Habeas Corpus at 11,

Herring v. Dir. ofthe Dep't ofCorr., No. 121663 (Va. filed Oct. 1, 2012) (ECF No. 56-5).

Herring claimed that the arrest warrants charged him "for two conspiracy crimes and one charge

of possession of stolen property," but during the grand jury proceedings the Commonwealth's
accusations were that Herring "had committed the crimes of grand larceny and nighttime

burglary." (Id) To the extent these claims are lurking in his submissions, they lack merit as
discussed below.

In summarizing andrejecting these claims, the Supreme Court of Virginia found:

. . . [P]etitioner alleges he was denied the effective assistance of counsel
when counsel failed to object when the Commonwealth changed the accusations
against him. Petitioner contends the Commonwealth initially obtained warrants

against him for conspiracy and possession of stolen property, but then obtained
indictments for statutory burglary and grand larceny. Petitioner contends this
violated his right to due process and constituted prosecutorial misconduct.
The Court holds that [C]laims (9) and (10) satisfy neither the

"performance" nor the "prejudice" prong of the two-part test enunciated in
Strickland. The Commonwealth's procurement of indictments and dismissal of
the warrants did not violate any constitutional right to which the petitioner was
entitled. See Benson v. Comonwealth, 190 Va. 744, 749-50, 58 S.E. 2d 312, 314

(1950). Counsel was not ineffective for failure to make a meritless argument to
the contrary. 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 theproceeding would have been different.

Herring, No. 121663, at5-6. Despite the fact that Herring raised different Claims 9 and 10 in his
§2254 Petition than in his state habeas petition, in his "Facts inSupport" attachment, his
argument for Claims 9 and 10 once again corresponds to those claims asalleged inthe Supreme

15

Court of Virginia. He contends that the Supreme Court of Virginia "has rewritten" Claim 9,
(§ 2254 Pet. Attach. 4-5.) This is simply not so. Claim 9 in his state habeas petition made no
mention of a change in the location of the crime.

For Claim 10, Herring argues that Benson is "not on point because the [Commonwealth]

had knowledge of Chris Averitt as the perpetrator of crimes before petitioner was arrested for

anything." (§ 2254 Pet. Attach. 5.) The Court fails to discern any error in the Supreme Court of
Virginia's rejection of this claim. While Herring has a constitutional right to a finding of

probable cause, "there is no single preferred pretrial procedure" by which to make the probable
cause finding. Gerstein v. Pugh^ 420 U.S. 103,123 (1975). It is well established that "an

indictment, 'fair upon its face,' and returned by a 'properly constituted grand jury,' conclusively
determines the existence of probable cause and requires issuance of an arrest warrant without

further inquiry." Id. at 117 n. 19. Here, a grand jury indicted Herring of statutory burglary and

grand larceny. Herring fails to identify that these indictments were constitutionally infirm.
Claims 9 and 10 lack merit and will be DISMISSED.

C.

Claims Related to the Sufficiency of the Evidence

In the next series of claims. Herring challenges his involvement in the crimes as an

accessory before the fact to larceny and burglary. The majority ofthese claims fault counsel for
failing to highlight the fact that Herring told Averitt that he should go look for items to steal at
Greenbrier Farms, andAveritt actually stole items from Basnight Land and Lawn instead. The

Supreme Court ofVirginia only touched on this argument in its rejection ofHerring's many
claims because Herring did notplace as great anemphasis on it in his state petition as hedoes in

his § 2254 Petition. Moreover, despite Herring's insistence to the contrary, the fact that Herring

16

mentioned Greenbrier Farms, but Averitt stole property from Basnight Land and Lawn, is a
distinction without a difference.

Both Greenbrier Farms and Basnight Land and Lawn are located at 225 Sign Pine Road

and had the same manager. (Nov. 23, 2010 Tr. 9.)^ Herring explains that "Basnight Land and
Lawn did not move to the Greenbrier Farms area until months after [Herring] left employment at

Greenbrier Farms." (§ 2254 Pet. Attach. 18.) Regardless of the exact name of the business

Herring used when he told Averitt to go steal items, or if he knew that Basnight Land and Lawn
had moved to Greenbrier Farms, Herring told Averitt to go to the place where both businesses
were located to look for items to steal. Based on this advice from Herring, Averitt stole property,

including computers, and Herring accepted two of the computers from Averitt knowing they
were stolen.

In Claim 16, Herring argues thatcounsel failed to object "at trialthat the prosecution of

[Herring] for Grand Larceny and Nighttime burglary violated due process oflaw because the
[Commonwealth] knew that said crimes were actually committed by one Chris Aver[i]tt."

(§ 2254 Pet. 17.) In finding this claim lacked merit, the Supreme Court ofVirginia explained
that:

The record, including the trial transcript, demonstrates that petitioner was

prosecuted not as the sole perpetrator, but as the accessory before the fact who
induced Averitt to commit the offenses. Thus, petitioner has failed to demonstrate

that counsel's performance was deficient or that there is a reasonable probability
that, butfor counsel's alleged errors, theresult of the proceeding would have been
different.

^Itappears that both Greenbrier Farms Nursery and the Chesapeake branch ofBasnight Land
and Lawn are located at Historic Greenbrier Farms. See http://www.basnightlandandlawn.com
(last visited Sept. 30, 2105.)

^Even if the businesses did not have the same management, to be guilty as an accessory before

the fact. Herring did not need to"participate inthe planning ofthe crime" or even be "[]aware of
the precise time or place ofthe crime's commission." McGhee v. Com., 221 Va. 422,427
(1980).
17

Herring, No. 121663,at 9-10. Similarly, in Claim 23, Herring argues that "counsel at trial failed
to object to the [Commonwealth's] improper argumentthat the [Herring] was an accessory
before the fact to the crimes that were committed by Chris Averitt at the Basnight business."

(§ 2254 Pet. 28.) In rejecting Claim 23, the Supreme Court of Virginia found:
Petitioner could be indicted and punished as if he were a principal in the

first degree if there was evidence he acted as an accessory before the fact. [Va.]
Code [Ann.] § 18.2-18. Thus, petitioner has failed to demonstrate that counsel's
performance was deficient or thatthere is a reasonable probability that, butfor
counsel's alleged errors, the result of the proceeding would have been different.

Herring, No. 121663, at 14. In Claim 24, Herring contends that "[c]ounsel failed to object at

trial to the [Commonwealth's] false and misleading statements that [Herring] was a principal and

acting inconcert v^th Chris Averitt, and that [Herring] was liable for Averitt's crimes." (§ 2254
Pet. 29.) In Claim 27, Herring argues that counsel failed to object at trial to the "prosecutor's

improper remarks about the concert of action theory" because counsel knew Herring had no codefendant or accomplice. {Id at 34.) The Supreme Court found that these claims lacked merit,
explaining:

The record, including the trial transcript, demonstrates that petitioner admitted
that, after Averitt complained that there was nothing to steal, petitioner told
Averitt "to go down" to the scene of the burglary "to check out the stuffdown
there," . . . The prosecutor's argument was a fair comment on the law and the
evidence and not objectionable. 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.

Herring, No. 121663, at 14-15. In Claim 41, Herring again argues that "[c]ounsel was
ineffective at trial for failure to competently argue against the [Commonwealth] implying that

[Herring] was anaccessory before the fact of burglary. [Herring] was not charged for accessory
before the fact of any crime." (§ 2254 Pet. 52.) Herring claimsthat counsel deficiently

presented the case oiTolley v. Commonwealth, 218 S.E.2d 550 (1975), which was inapplicable
18

because he was not indicted as an accessory before the fact. {Id.) The Supreme Court of

Virginia rejected this claim, explaining:
The record, including the trial transcript, demonstrates that the Commonwealth's

theory of the case was that petitioner was an accessory before the fact because he
encouraged and advised Averitt to commit the offenses. Furthermore, petitioner
as an accessory before the fact could be indicted and punished as if he were a
principal in the first degree. [Va.] Code [Ann.] § 18.2-18. Thus, Tolley was
relevant to his case and 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.

Herring, No. 121663, at 21-22. The Court fails to discern any error in the Supreme Court of
Virginia's rejection of Claims 16, 23,24, 27, and 41.

Herring claims thatthatthe Supreme Court erred because "[n]o indictment charged [him]
with being an 'accessory' to any crime." {§ 2254 Pet. Attach. 8;see id. 52.) However, pursuant
to section 18.2-18 of the Virginia Code, "[i]n the case of every felony,... every accessory

before the fact may be indicted, tried, convicted and punished in all respects as if a principal in

the first degree

" Va. Code Ann. § 18.2-18 (West 2015). Accordingly, no need existed for

the indictment to identify thatHerring was charged as an accessory before the fact. Moreover,
the evidence at trial demonstrated Herring's guilt of larceny and burglary as an accessory before

the fact. Herring told Averitt where he could find items to steal, Averitt stole computers and
other items, and Herring accepted two of the computers that he knew Averitt stole. Herring's

complaints about the Supreme Court of Virginia's opinion derive firom his frivolous argument
that he told Averitt to go to Greenbrier Farms, not Basnight Land and Lawn. Contrary to

Herring's contention, the Supreme Court ofVirginia appropriately concluded that counsel could
not be faulted for failing to objectto the Commonwealth's prosecution of Herring as an

accessory before the fact to grand larceny and burglary, or the Commonwealth's statements that

19

Herring acted as an accessory before the fact to the crimes. Claims 16, 23,24,27, and 41 lack
merit and will be DISMISSED.

In Claim 17, Herring argues that counsel "at trial failed to competently object and argue

that the petitioner's possession of some stolen property about ninety (90) days after the Basnight

burglary did not support the [Commonwealth's] argument that [Herring] could be prosecuted for
burglary and grand larceny." (§ 2254 Pet. 21.) In rejecting this claim, the Supreme Court of
Virginia found:

The record, including the trial transcript, demonstrates that counsel argued that
petitioner's possession of the stolen property more than ninety days after the
burglary did not constitute recent possession, that the Commonwealth was
therefore not entitled to any presumption that petitioner's possession of the stolen
items suggested he was the thief, and that the Commonwealth had therefore failed
to prove petitioner was the criminal agent. Petitioner has failed to identify any
authority counsel should have submitted to fiirther support his argument. 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.

Herring, No. 121663, at 10. The Court discerns no error inthe Supreme Court ofVirginia's
resolution of this claim. Herring nowtakes issue with the Supreme Court of Virginia's statement

that he failed to identify any authority counsel should have submitted to further this argument

and argues that counsel made "incompetent argument." (§ 2254 Pet. Attach 9-10.) Herring
admitted to police that the two computers found in the house were stolen byAveritt and given to
him by Averitt. Given this admission by Herring, any argument contesting Herring's
involvement in burglary or larceny would not be successful. Herring also claims that counsel
was ineffective for failing to argue that Herring admitted to police that he told Averitt to go to
Greenbrier Farms and not Basnight Land and Lawn, and that Herring never told Averitt to go to

Basnight Land and Lawn. {Id. at 9.) Herring insists that this makes him not guilty, because he
never "ha[d] an agreement to commit any crimes at Basnight Land and Lawn." {Id.) As the
20

Court has previously explained, both Greenbrier Farms and Basnight Land and Lawn are located

at 225 Sign Pine Road and had the same manager. (See Nov. 23, 2010 Tr, 9.) Counsel cannot be
faulted for failing to raise this frivolous argument. Claim 17 will be DISMISSED.
In the next series of claims, Herring argues that counsel failed to object at trial to certain

statements about the evidence made by the prosecutor and the Circuit Court. In aptly

summarizing and rejecting Claims 18 through22, the Supreme Court of Virginia explained:

In claim (18), petitioner alleges he was denied the effective assistance of
counsel when counsel failed to object at trial to the prosecutor's statement that

petitioner had told Averitt to commit the crimes of burglary and grand larceny.
Petitioner contends he did not tell Averitt to commit any type of crime and had no
control over Averitt.

In claim (19), petitioner alleges he was denied the effective assistance of
counsel when counsel failed to object to the prosecutor's statement to the trial

court that petitioner "set the whole thing up." Petitioner contends he in fact told
Averitt to goto thesiteof the burglary for employment, notto commit a crime.
In claim (20), petitioner alleges he was denied the effective assistance of
counsel when counsel failed to object at trial when the prosecutor argued that the

petitioner was a principal or an accessory or "set up" the crime when there was no
evidence to support that argument.

The Court holds that claim[s (18) through (20)] satisf[y] neither the

"performance" nor the "prejudice" prong of the two-part test enunciated in
Strickland. The record, including the trial transcript, demonstrates that petitioner
admitted that, after Averitt told petitioner he was looking for something to steal

and complained there was nothing to steal, petitioner told Averitt "to go down" to
the scene of the burglary "to check out the stuff down there." Petitioner then
knowingly accepted the stolen items from Averitt.
Therefore, the
Commonwealth's statements were a reasonable inference from the evidence and

not objectionable. 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, theresult of the proceeding would have been different.
In claim (21), petitioner alleges he was denied the effective assistance of
counsel when counsel failed to object at trial to the trial court's statement that

petitioner had sent Averitt to the business with the intent to commit crimes there.
Petitioner contends this statement was false and therefore objectionable.

The Court holds that claim (21) satisfies neither the "performance" nor the

"prejudice" prong of the two-part test enunciated in Strickland. The record,
including the trial transcript, demonstrates that the trial court was restating the
Commonwealth's argument that the testimony showed petitioner sent Averitt to
21

the business to "check it out." 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.

In claim (22), petitioner alleges he was denied the effective assistance of
counsel when counsel failed to object at trial to the prosecutor's statement
petitioner had "inside knowledge" about property at the business and "how to get
it." Petitioner contends that, having once been an employee of the business, he no

longer had "inside knowledge" after the business moved to the Greenbrier Farms
area and he did not have a management position there.
The Court holds that claim (22) satisfies neither the "performance" nor the

"prejudice" prong of the two-part test enunciated in Strickland. The record,
including the trial transcript, demonstrates that petitioner told police that he had
worked at the business when it was located at Greenbrier Farms and petitioner's

former employer testified that petitioner knew where the stolen items were
located. Therefore, the Commonwealth's statements were a reasonable inference

from the evidence and not objectionable. 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.

Herring, No. 121663, at 10-14. The Court discerns no error inthe Supreme Court ofVirginia's

rejection ofthese claims. The majority ofthese claims stem fi-om Herring's argument that he
could not be guilty because he told Averitt to go to Greenbrier Farms to steal items, not Basnight
Land and Lawn. Herring claims thatthe Supreme Court of Virginia erred by"intentionally

chang[ing]" the statement Herring made to Averitt to "'go down to Greenbrier Farms and check
out stuffdown there'" to go to the "'scene of the burglary' because Greenbrier Farms is a
different business than Basnight Land and Lawn." {See, e.g., § 2254 Pet. Attach 11.) The

Supreme Court ofVirginia's alteration was not an error considering both businesses share an
address and manager. The prosecutor andthe Circuit Court made appropriate statements

considering Herring's statement to police that he informed Averitt of a place where Averitt could
steal items and then accepted computers he knew Averitt had stolen. Counsel cannot be faulted

for failing to raise Herring's frivolous challenges during trial. Because Herring demonstrates
neither deficiency of counsel nor resulting prejudice, Claims 18 through 22 will be DISMISSED.
22

In Claim 28, Herring argues that counsel "failed to object at trial to the
[Commonwealth's] false and misleading statement that [Herring] 'told Mr. Averitt to go and

steal those items

(§ 2254 Pet. 36.) The Supreme Court of Virginia found no

ineffectiveness of counsel, explaining:

The record, including the trial transcript, demonstrates that petitioner admitted
that, after Averitt complained that there was nothing to steal, petitioner told
Averitt "to go down" to the scene of the burglary "to check out the stuff down
there." Therefore, the Commonwealth's argument was a reasonable comment on
the evidence and not objectionable.

Herring, No. 121663, at 17. Herring complains the Supreme Court of Virginia erred in its
conclusion because "the said words by [the prosecutor]" that Herring "'told' Chris Averitt 'to go
and steal these items'

do not exist in the [Herring's] statement." (§ 2254 Pet. Attach 25.)

The Courtdiscerns no error. The prosecutor was merely summarizing the evidence. Her
statement was not incorrect and was not evidence. Further underlying this claim is Herring's

argument about telling Averitt to go to Greenbrier Farms, not Basnight Land and Lawn. Counsel
was neither deficient, norwas Herring prejudiced, by counsel's failure to advance these meritless
objections. Claim 28 will be DISMISSED.

In Claim 29, Herring faults counsel for failing to object at trial "that the [Commonwealth]

had no legal right to use the testimony ofthe unconvicted felon Timothy Adams against

[Herring]." (§ 2254 Pet. 37.) Herring seemingly calls Detective Adams an "unconvicted felon"
because Herring believes that Detective Adams committed peijury when he testified that "Robert

[Herring] gave me the following story as to how the burglary came about." (§ 2254 Pet. Attach
27.) As the Supreme Court aptly found, "Adams' testimony attrial consisted ofdescribing the

items police found ina search ofpetitioner's home and petitioner's confession to and explanation
for possessing those items. Adams did not testify attrial that petitioner committed the offenses

23

of statutory burglary and grand larceny." Herring, No. 121663, at 7. The Court discerns no

error in the Supreme Court's rejection of Claim 29. Moreover, to the extent Herring again
argues that Detective Adams committed perjury when he testified about "a burglary that
happened at Basnight Land and Lawn" when Herring only mentioned Greenbrier Farms to
Detective Adams in his statement, this argument lacks merit. (§ 2254 Pet. Attach. 27-28.)

Counsel prudently lodged no objection to Detective Adams' statement because Basnight Land
and Lawn was located at the same address as Greenbrier Farms. Herring demonstrates no

deficiency of counsel or resulting prejudice, and Claim 29 will be DISMISSED.

In Claim 26, Herring faults counsel for "fail[ing] to object at trial to the [Circuit] Court's

remarks about 'conspiracy'" because he was not charged with conspiracy. (§ 2254 Pet. 33.) The
Circuit Courtremarked: "So conspiracy - it may be conspiracy because the two of you

"

(Nov. 23, 2010 Tr. 32.) The prosecutor interrupted and corrected the Circuit Court by explaining
that"in a concert of action theory, I mean, he's an accessory so he is liable for every foreseeable
action that the codefendant or another accomplice commits." (Nov. 23, 2010 Tr. 32.) Herring
claims the Circuit Court's statement was an error because he had not been charged with

conspiracy. The Supreme Court ofVirginia rejected this claim, explaining:
The record, including the trial transcript, demonstrates that the [Circuit C]ourt
was questioning the Commonwealth about its theory that petitioner was guilty
based on concert of action when it made this comment, not making a finding that

petitioner was guilty of conspiracy. 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.

Herring, No. 121663, at 16. The Court discerns no unreasonable application ofthe law and no
unreasonable determination of the facts in the Supreme Court of Virginia's rejection of this

24

claim. See 28 U.S.C. § 2254(d)(l)-(2). Counsel reasonably eschewed making the meritless
objection Herring raises here. Claim 26 will be DISMISSED.
In Claim 25, Herring faults counsel for failing to object to the Circuit Court's denial of

Herring's motion to strike. In his state habeas petition, Herring argued that the Circuit Court

employed the wrong standard for ruling on a motionto strike. See Petition for Writ of Habeas

Corpus at 24-26, Herring, No. 121633. In his attachment to his § 2254 Petition, Herring "admits
the correct standard of review was used." (§ 2254 Pet. Attach. 22.) Thus, Herring identifies no

error in the Supreme Court of Virginia's rejection of Claim 25. Instead, Herring recasts his
claim to raise his frivolous arguments that he never mentioned Basnight Land and Lawnto
Averitt and therefore he had no involvement in any crimes that took place there. (§ 2254 Pet. 31-

32.) Once again, counsel cannot be faulted for failing to advance this meritless argument. Claim
25 lacks merit and will be DISMISSED.

Similarly, in Claim 35, Herring claims that counsel rendered ineffective assistance when

he "presented an incompetent motion to strike the burglary conviction" during his renewed
motion to strike justbefore sentencing. (§ 2254 Pet. 42.) Herring argues that counsel failed to
"cite any United States Supreme Court case decisions onthe recent possession theory ...

although such cases were available ...." {Id.) In rejecting this claim, the Supreme Court of
Virginia explained that Herring failed to demonstrate that counsel was deficient orthat Herring
was prejudiced by counsel's actions because "petitioner has failed to identify any authority
counsel should have but failed to cite." Herring, No. 121663, at 19. Of course, in his § 2254

Petition, Herring now identifies two cases that he believes counsel should have cited {see § 2254
Pet. 42-43 (citing West v. Wright, 931 F.2d 262 (4th Cir. 1991); Drinkard v. Comonwealth, 178
S.E. 25 (1935))). Herring wholly fails to proffer how these cases would have strengthened

25

counsel's argument on the motion to strike the burglary, or would have altered the Circuit

Court's decision to deny the motion to strike. Herring admitted that he knowingly possessed two
computers that Averitt had stolen after receiving Herring's guidance. Any argument by counsel
about the length of possession would have little impact in light of Herring's admission of guilt.

Herring demonstrates neither deficiency of counsel nor resulting prejudice. Claim 35 will be
DISMISSED.

In Claim 36, Herring contends that counsel was ineffective at sentencing because he "told

the Court that [Herring] was involved in the Basnight Land and Lawn burglary." (§ 2254 Pet.

43.) The Supreme Court rejected this claim, finding:
The record, including the trial and sentencing transcripts, demonstrates that
counsel's motion to strike had been denied, the trial court had found petitioner

guilty, and counsel was arguing mitigation at sentencing when he made the
statement that petitioner's involvement in the burglary was "de minimis." This
was a reasonable tactical decision which should not be second-guessed in habeas

corpus. See Strickland, 466 U.S. at 689-90.

Herring, No, 121663, at 20. The Court discerns no unreasonable application of the lawand no
unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(l)-(2). Counsel was not

deficient for mentioning that Herring "was involved" in the burglary at sentencing, nor was

Herring prejudiced, as Herring had already been convicted of that crime. In his § 2254 Petition,
Herring predictably argues thatcounsel was ineffective and made a "false" statement because
Herring was not involved with the Basnight crimes with Averitt because he only toldAveritt to

goto Greenbrier Farms. (§ 2254 Pet. 43.) Forthe reasons previously stated, counsel's reference
to Herring's involvement in the burglary at Basnight Land and Lawn was not deficient. Claim
36 is meritless and will be DISMISSED.

26

In Claims 30 and 31, Herring argues that counsel failed to argue that Herring could not be

convicted of petit larceny because it was an uncharged crime. In rejecting these claims, the
Supreme Court of Virginia explained:

The record, including the trial transcript, the sentencing transcript, and the
sentencing order, demonstrates that the trial court convicted petitioner of a lesserincluded offense substantially charged within the indictment for grand larceny.
See [Va.] Code [Ann.] § 19.2-285. 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.

Herring, No. 121663, at 17-18. The Court discerns no unreasonable application of the law and
no unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(l)-(2). Herring does not

contest that petit larceny is a lesser-included offense of grand larceny, butinstead claims that he
could not be convicted of petit larceny because the Commonwealth never charged him with this

crime. He argues thatthe Commonwealth puton no evidence of the computers' value so,
therefore, the value must be $0, and"acquittal was justified." (§ 2254 Pet. Attach. 30.) Counsel

reasonably eschewed raising this meritless objection because petit larceny was substantially

charged inthe indictment for grand larceny. See Berryman v. Moore, 619 F. Supp. 853, 856
(E.D. Va. 1985) (explaining that the value ofthe stolen items was the only essential

distinguishing element between petit and grand larceny). Moreover, as discussed below, any
objection at that point in thehearing could have harmed Herring's case.
The Commonwealth claimed that the two stolen computers were worth between $950 and

$1500 each, thereby subjecting Herring to a conviction of grand larceny, which requires the
stolen items to be valued at more than $200. Va. Code Ann, § 18.2-95 (West 2015). Counsel

successfully argued that the Commonwealth had failed to put on sufficient evidence of their
value. (Dec. 13, 2010 Tr. 3-4.) The Circuit Court agreed to the extent it found Herring guilty of

27

the lesser offense of petit larceny, a misdemeanor, which only required that the stolen goods be

valued under $200, instead of grand larceny, a felony with a penalty of up to twenty years of
incarceration. (Dec. 13,2010 Tr. 4-5); see Va. Code Ann. § 18.2-96 (West 2015) ("Any person

who ... [c]ommits simple larceny ... of goods ... of the value of less than $200 .,. shall be
deemed guilty of petty larceny). In light of this boon, Herring demonstrates neither deficiency of
counsel nor resulting prejudice, and Claims 30 and 31 will be DISMISSED.
D.

Ineffective Assistance of Appellate Counsel

"In order to establish a claim that appellate counsel was ineffective for failing to pursue a
claim on direct appeal, the applicant must normally demonstrate" that appellate counsel

performed deficiently and that a reasonable probability of a different result exists. Bell v. Jarvis,
236 F.3d 149,164 (4th Cir. 2000) (citingStricklandv. Washington, 466 U.S. 668, 688, 694

(1984)). Counsel had no obligation to assert all non-frivolous issues on appeal. Rather,

"'winnowing 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." Smith v.
Murray, All U.S. 527, 536 (1986) (quoting Jowej v. Barnes, 463 U.S. 745, 751-52 (1983)). A

presumption exists that appellate counsel "'decided which issues were most likely to afford relief
on appeal.'" Bell, 236 F.3d at 164 (quoting Pruettv. Thompson, 996 F.2d 1560, 1568 (4th Cir.
1993)). "'[0]nly when ignored issues are clearly stronger thanthose presented, will the

presumption of effective assistance of counsel be overcome.'" Id. (quoting Smith v. Robbins,
528 U.S. 259, 288 (2000)). As explained below. Herring fails to demonstrate that appellate
counsel rendered ineffective assistance.

In Claims 37 and 38, Herring faults appellate counsel for stating in both the Court of

Appeals and the Supreme Courtof Virginia that Herring "had been convicted as 'an accessory

28

before the fact of burglary and grand larceny' when [he] had not been convicted of those
crimes." (§ 2254 Pet. 44,47.) In finding these claims lacked merit, the Supreme Court of
Virginia found:
The record, including the trial transcript, demonstrates that counsel's statement
was accurate. Thus, petitioner has failed to demonstrate 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.

Herring, No. 121663, at 20-21. Neither Herring, nor the record, demonstrate an error in the

Supreme Court's rejection of these claims. Claims 37 and 38 will be DISMISSED.
In Claims 39 and 40, Herring argues that appellate counsel rendered ineffective

assistance because he failed to argue that his petit larceny conviction was void because he was

never charged for that offense. Finally, in Claims 42 and43, Herring contends that appellate

counsel improperly focused hisargument in the Court of Appeals and the Supreme Court of

Virginia onHerring "being anaccessory before the fact ofburglary and grand larceny when
[Herring] had not been convicted of being an accessory to either crime." (§ 2254 Pet. 55, 57.)
Infinding no ineffective assistance of counsel, the Supreme Court of Virginia explained that

"[t]he selection ofissues to address on appeal is left to the discretion ofappellate counsel, and
counsel need not address every possible issue on appeal." Herring, No. 121663, at 21. The
Court fails to discern any errorin this conclusion. Herring fails to demonstrate that the

challenges to his petit larceny conviction orto his liability asanaccessory before the fact that he

urges here are clearly stronger than the claims appellate counsel advanced on appeal. To the
contrary, as discussed insupra Part IV.C, Herring's underiying challenges are meritless. Claims
39,40,42, and 43 will be DISMISSED.

^Appellate counsel argued that insufficient evidence existed to convict Herring of burglary and
petit larceny and as an accessory before the fact to burglary and larceny. Herring v.
Commonwealth, No. 1605-11-1, at 1-2 (Va. Ct. App. Nov. 16, 2011).
29

V.

CONCLUSION

For the foregoing reasons, Respondent's Motion to Dismiss (ECF No. 54) will be
GRANTED. Herring's claims will be DISMISSED. Herring's Request for Admissions (ECF

No. 60) will be DENIED AS MOOT. The Court has also reviewed the lengthy "affidavit"

Herring seeks to add in his Motion to Amend, and it fails to alter the Court's conclusion that his
claims lack merit. Accordingly, the Motion to Amend (ECF No. 61) will be DENIED AS

FUTILE. The § 2254 Petition and the action will be DISMISSED. A certificate of appealability
will be DENIED.'
An appropriate Final Order shall issue.

/S/

Date: H--If-1L

James R. Spencer
Senior U. S. District Judge

Richmond, Virginia

^An appeal may not betaken from the final order in a § 2254 proceeding unless ajudge issues a

certificate ofappealability ^COA"). 28 U.S.C. §2253(c)(1)(A). ACOA 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
thatthe issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v.
McDanieh 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)). Herring fails to meet this standard.
30