Hamilton v. Director of VDOC

Filing 27

MEMORANDUM OPINION. Signed by Magistrate Judge Roderick C. Young on 12/23/2015. Copy mailed to Petitioner.(tjoh, )

:,3

DEC 2 3 2U.5

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

CL

CHRISTOPHER SHANE HAMILTON,
Petitioner,
V.

Civil Action No. 3:14CV636

DIRECTOR OF VDOC,

Respondent.
MEMORANDUM OPINION

Christopher Shane Hamilton, a Virginia state prisoner proceeding pro se, brings this

petition pursuant to 28 U.S.C. § 2254 (hereinafter, "§ 2254 Petition," ECF No. 1). By
Memorandum Opinion and Order entered May 11,2015, the Court denied without prejudice

Respondent's Motion to Dismiss and ordered Respondent to file a further response. Respondent
has filed his renewed Motion to Dismiss (hereinafter, "Renewed Motion to Dismiss." ECF

No. 18) and expanded the record by providing an affidavit of trial counsel. Despite Respondent

having issued a Roseboro notice, Hamilton has not responded. Forthe reasons stated below, the
Renewed Motion to Dismiss will be GRANTED.
I.

PROCEDURAL HISTORY

On February 7, 2012, the Circuit Court for the City of Williamsburg and the County of

James City ("Circuit Court") convicted Hamilton, pursuant to guilty pleas, of two counts of

robbery, one count of felony eluding police, two counts ofabduction, and four counts of use of a
firearm, and sentenced Hamilton to an active term of twenty-two years in prison.
Commonwealth v. Hamilton, Nos. 20479-00, 20481-00 through 20484-00, 20489-00, 20490-00,

20562-00, and 20566-00, at 1-3 (Va. Cir. Ct. Feb. 7,2012).' Hamilton appealed. On December
3,2012, the Supreme Court of Virginia refused Hamilton's petition for appeal. Hamilton v.
Commonwealth, No. 121286, at 1 (Va. Dec. 3,2012).
On November 4, 2013, Hamilton filed a petition for a writ of habeas corpus in the
Supreme Court of Virginia, raising the same claims as in the instant § 2254 Petition. Petition for
Writ of Habeas Corpus at 1, Hamilton v. Dir, ofthe Dep't ofCorr., No. 131738 (Va. filed Nov.

4,2013). On June 6, 2014, the Supreme Court of Virginia found that Hamilton's ineffective
assistance claim was barred by the rule in Anderson v. Warden, 281 S.E.2d 886 (Va. 1981),

because his allegations contradicted his representations at his guiltyplea colloquy, and found that

his challenge to his convictions under the incidental detention doctrine was procedurally barred

by the rule inPeyton v. King, 169 S.E.2d 569, 571 (Va. 1969), because a "voluntary and
intelligent guilty plea waives all non-jurisdictional defenses antecedent to a guilty plea."
Hamilton v. Dir. ofthe Dep't ofCorr., No. 131738, 1-3 (Va. June 6, 2014).

Thereafter, Hamilton filed the present § 2254 Petition in which he raises the following
claims for relief:

Claim One:

Counsel rendered ineffective assistance by failing to "perform pre-

trial investigation" on the abduction and robbery charge and
thereby "push[ed] a plea agreement on defendant" despite
Hamilton's "reluctance to take a plea." (§ 2254 Pet. Attach. 2-3,
ECFNo. 1-1.)

Claim Two:

Hamilton's abduction convictions were invalid because they were
incidental to his robbery convictions. (Id. at 4-6.)

' Pursuant to the pleaagreement, the Commonwealth agreed to dismiss six additional charges.
Plea Agreement at 3, Commonwealth v. Hamilton, Nos. 20491-00 through 20493-00, 20563-00
through20565-00 (Va. Cir. Ct. entered Sept. 7, 2011).

^The Court employs the pagination assigned by the CM/ECF docketing system for Hamilton's
§ 2254 Petition and Attachment.
2

While not eloquently articulated, the Court discerned that the heartof Hamilton's petition
arguedthat counsel rendered ineffective assistance by failing to properly advise Hamilton about

the incidental detention doctrine, see Jones v. Sussex I State Prison, 591 F.3d 707, 710 (4th Cir.
2010), prior to the entry of his guilty plea, thus, making his plea invalid. Because Respondent
failed to demonstrate that the procedural bars should be enforced in the instant case and failed to
address Hamilton's argument that he entered into his guilty plea based on the defective advice of

counsel thereby rendering his plea unknowing and involuntary, the Court denied the Motion to
Dismiss and ordered further briefing. See Hamilton v. Dir. ofVDOC, No. 3:14CV636, 2015 WL
2206547, at *1-2 (E.D. Va. May 11, 2015).
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 reliefby 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 court may
not grant a writ ofhabeas 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 lightof the evidence presented in the State courtproceeding.

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)).

In Claim Two, Hamilton argues that his abduction convictions were invalid because they
were incidental to his robbery convictions. (§ 2254 Pet. Attach. 4-6.) Respondent argues that

Hamilton's claim challenging his convictions under the incidental detention doctrine is

procedurally barred because the Supreme Court of Virginia applied the rule in Peyton v. King,
169 S.E.2d 569, 571 (Va. 1969), and refused to consider his claim on habeas reviewbecause a

"voluntary and intelligent guilty plea waives all non-jurisdictional defenses antecedent to a guilty

plea." (Br. Supp. Ren. Mot. Dismiss 17.) Asexplained below, the Court discerns no
unreasonable application of the lawand no unreasonable determination of the facts in the
Supreme Court of Virginia's rejection of this claim. See 28 U.S.C. § 2254(d)(l)-(2).

"'[A] guilty plea constitutes a waiver of all nonjurisdictional defects, including the right
to contest the factual merits of the charges.'" United States v. Martinez, 424 F. App'x 208, 208

(4th Cir. 2011) (alterations inoriginal) (quoting United States v. Willis, 992 F.2d 489,490 (4th
Cir. 1993)); Peyton, 169 S.E.2d at 571. Bypleading guilty, Hamilton waived his right to contest
the sufficiency of the evidence underlying his conviction for abduction. Id. Thus, the Supreme
Court of Virginia reasonably found that Claim Two was barred from review.
Hamilton, however, suggests that his guilty pleawas not knowingly and voluntarily made
due to counsel's failure to explain the incidental detention doctrine to him. For the reasons set
forth below, Hamilton fails to demonstrate any deficiency of counsel or resulting prejudice from
counsel's purported inaccurate or incomplete advice.

III.

A.

PURPORTED INEFFECTIVE ASSISTANCE OF COUNSEL

Applicable Law

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. Strickland v. Washington, 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 tacticsfall '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 component requires a convicted defendant to "show

thatthere 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, 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.

In the context of a guilty plea, the Supreme Court modified the second prong of

Strickland io require a showing that "there is a reasonable probability that, but for counsel's

errors, [petitioner] would not have pleaded guilty and would have insisted on going to trial." Hill
V. Lockhart, 474 U.S. 52, 59 (1985). Any assertion by Hamilton that he would not have pled

guilty if he had received better assistance from counsel is not dispositive ofthe issue. See United
StatesV. Mora-Gomez, 875 F. Supp. 1208,1214 (E.D. Va. 1995). Rather, "[t]his is an objective

inquiry and [highly] dependent onthe likely outcome of a trial had thedefendant not pleaded
guilty." Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (internal citation omitted) (citing
Hill^ 474 U.S. at 59-60). The Court looks to all the facts and circumstances surrounding a

petitioner's plea, including the likelihood of conviction and any potential sentencing benefit to
pleading guilty. See id. at 369-70. In conducting the foregoing inquiry, the representations of
the defendant, his lawyer, and the prosecutor during the plea proceedings, "as well as any
findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent
collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Thus, "[a]bsent clear

and convincing evidence to the contrary, a defendant is bound by the representations he makes

under oath during a plea colloquy." Fields v. Att'y Gen. ofMd, 956 F.2d 1290, 1299 (4th Cir.
1992) (citations omitted).

Asexplained below, Hamilton fails to demonstrate any deficiency of counsel or resulting

prejudice in light of the uncontroverted evidence ofhis guilt and the significant benefits he
received from entering his guilty plea. Hamilton cannot show thata reasonable defendant in his

position would have insisted on proceeding to trial, but for counsel's alleged failure to
investigate and explain to Hamihon the incidental detention doctrine.
B.

Guilty Plea Proceedings and Factual Basis for Plea

At this point, because Hamilton's claim ofineffective assistance of counsel stems fi-om
counsel's performance prior to and during the plea proceedings, the Court provides a summary

ofthe plea hearing. During the hearing, Hamilton swore under oath that he fully understood the
charges against him, that he had discussed the charges with counsel, and that he understood what
the Commonwealth needed to prove to find him guilty. (Sept. 7, 2011 Tr. 11.) Hamilton agreed
that he had sufficient time to discuss any possible defenses with his lawyerand whether or not to

plead guilty, and he decided for himself to plead guilty. (Sept. 7, 2011 Tr. 11-12.) Hamilton
agreed that he entered into the guilty plea freely and voluntarily and because he was infact guilty
of the crimes charged. (Sept. 7, 2011 Tr. 12.) Hamilton also agreed that he understood that by

pleading guilty he waived the right to confront and cross-examine his accusers and defend

himself. (Sept. 7, 2011 Tr. 12.) Hamilton also agreed that he was "entirely satisfied" with the

services of his counsel and that there was nothing Hamilton "asked him to do in preparation for
this trial that he failed or refused to do." (Sept. 7, 2011 Tr. 13.) Hamilton agreed that he
understood that he could receive up to "four life sentences ... and 23 years." (Sept. 7, 2011 Tr.
14.) The Circuit Court found the pleas fi-eely, intelligently, and voluntarily made, and accepted

the pleas. (Sept. 7, 2011 Tr. 16.) The Circuit Court also explained that in exchange for

Hamilton's guilty pleas, the Commonwealth had agreed to nolleprosequi three abduction

charges and three related firearm charges. (Sept. 7, 2011 Tr. 16-17.) As a factual basis for the
pleas, the Commonwealth explained:

These involved two separate offenses, so I'll go in chronological order. The first
[robbery, abduction, and two firearm] offenses[s] occurred at the Rite Aid in
James City County on the 18th of April.
. . . The pharmacist, Jeff Lane, indicated that he came into the pharmacy
at 9:00. He opened the door to the pharmacy, clocked in, turned his computer on,
opened the gate and was washing his hands when a man came around the comer
in the pharmacy. He pushed me up against the sink. I thought he was someone

joking. I turned and his gun was against my forehead. He pushed me up against
the refrigerator and said I want your narcotics. I was walking to the narcotics
cabinet, and he said, Don't screw with me [motherfucker]. I said, I'm not. The
cabinet is over here. He pushed me up against the shelf and hit me with the gun.
That was in the back of his head and the base of the neck. I said. My leg is

broken. I can't move any faster. He hit me again on the back of my head. I

opened the cabinet, and he said. Give me your narcotics. I said, I'll give you
everything. Just tell me what you want. He hit me again. You know what I want
[motherfucker]. Ijust grabbed the first drawer of Adderall and started stuffing his
bag. He pushed me away and left. I told him I was not looking. I put my head
down. As he was leaving, I saw his coat. Obviously, they called the police right
away and reported that. The offender later, who was determined to be Mr.
Hamilton by his admission, wasn't located at that point.
Then, on the 26th of April of this year - - and this is one of the witnesses
at Olde Towne Pharmacy. She indicated that they were working at Old Towne
Pharmacy. They were working behind the counter. Heard a man say don't move
and turned around to see a black male with a gun grab the pharmacist by the arm
and demand all the Oxycontin and Percocet, et cetera. Told three of the female

staff members there to get in the comer. Herded them over to the comer where
they stood still. He saw one woman counting money. He asked for the money,
and she gave it to him. The pharmacist put the dmgs in a plastic bag he had
brought with him. He took the bag and told them not to move and he left. She
pushed the alarm and called 911.
When the police got the 911 call, they got a description, and a vehicle
description was given also. They located a vehicle fitting that description
eastbound on Richmond Road at the light of the Richmond airport. Once the
officers left Olde Towne and tried to catch up to the vehicle, they caught up to the
vehicle near Richmond Road. They vehicle made a left tum at the crossover and
started to head westbound on Richmond Road. The officers pulled through the
cut through prior to the one that he had pulled into and waited for him to go by.
He came to the cut through and was stopped and ordered to get out. He took off
eastbound on Richmond Road and made a U-tum and began the pursuit. Heading
eastbound on Richmond Road the vehicle was driving recklessly by cutting off

cars, going around cars and accelerating at higher and higher speeds and not
stopping for the officer's emergency equipment. Lieutenant Bamett threw out

spikes ^ead. The subject swerved around them and continued east on Richmond
Road, made a right tum onto Ironbound Road or a left onto Ironbound Road near
the Longhill connector but going into a right-hand only tum lane for Ironbound
west traffic. The vehicle kept eastbound on Ironbound Road. There was a
constmction area where workers were present, and he went onto the right
shoulder kicking up dust and driving around the eastbound lane of traffic that was
stopped. Once off the shoulder, the vehicle tumed into New Town going into the
Oxford or New Town section. That was one way in. There was no way out. The
officer followed in, and another officer went in the opposite direction. The

suspect's vehicle met the other officer head on and stopped at that point, and he
jumped out of the car with his hands up and obeyed their commands at thatpoint,
and he indicated to the officer thanks for catching me. He indicated that he had

taken a bottle of the pills he took from the pharmacy and wanted medical
treatment, and the medics were called at that point in time. He later admitted to
the offense on both dates. Judge, and all of those events occurred in James City

County. The pharmacist at the Rite-Aid was Jeff Lane. The pharmacist that
actually handed him the pills was Kelly Hasty, and the other abductions deah with
the other three women that were herded into the comer of the pharmacy.

(Sept. 7, 2011 Tr. 17-21.) After the conclusion ofthe proffered evidence, counsel for Hamilton

agreed and stipulated that the evidence as presented was a fair summary and sufficient to find his
client guilty. (Sept. 7, 2011 Tr. 21.) The Circuit Court found Hamilton guilty of two counts of
abduction, two counts of robbery, four counts of firearm offenses, and one count of evading and
eluding a police officer. (Sept. 7, 2011 Tr. 21-22.)

C.

Hamilton's Allegations in Claim One

In Claim One, Hamilton contends that counsel failed to "perform a pre-trial
investigation," failed to advise him, prior to the entry of his guilty pleas, of information that may
have undermined the robbery and abduction charges, and "push[ed] the plea agreement on
[him]." (§ 2254 Pet. Attach. 2.) In support of his claim, Hamilton contends that counsel received

a "document of information a full month" before he pled guilty "questioning the validity of

the ... charges of robbery and abduction and made no effort to relay this information to the
defendant or make a necessary motion to strike ...." {Id. at 2.) Hamilton attaches to his § 2254

Petition as Exhibit A, an email to his attorney, Dwight Dansby, with a quote from a Virginia case

pertaining to robbery and abduction. (§ 2254 Pet. Ex. A, at 1.) The Court assumes that this
email is the document that Hamilton believes counsel should have shown him prior to the entry

of his guilty pleas. Hamilton argues that: "the alleged abductions [were] merely incidental to

the crime of robbery" and "defendant did nothing more than what was necessary to commit the

crime of robbery." (§ 2254 Pet. Attach. 4.) Hamilton suggests that counsel rendered ineffective
assistance by failing to properly advise Hamilton about the incidental detention doctrine prior to

the entry of his guilty pleas, making his pleas invalid. As discussed below, Hamilton's claim
lacks merit because he fails to demonstrate any deficiency of counsel or prejudice from counsel's

purported failure to fully explain the incidental detention doctrine and his purportedly erroneous
advice to plead guilty.
D.

Hamilton Fails to Demonstrate Deficiency or Prejudice
1.

Hamilton Demonstrates No Deficiency of Counsel

In response to Hamilton's allegations, counsel avers

I did conduct [a] pretrial investigation. I provided Mr. Hamilton copies of
the criminal statutes for each charge against him, discussed the elements of the

charges with him and the expected evidence against him to support the charges. I
reviewed the law and cases regarding incidental detention during robbery, and
discussed this [with] Mr. Hamilton.
Mr. Hamilton attached a copy of a memo to his petition regarding the
incidental detention doctrine. This memo is a summary of the doctrine which I
asked my law clerk, Mr. Fehrenbach, to type for me. The summary is based upon
review of several cases. A few of the cases are cited in the Hoyt v.
Commonwealth (605 S.E.2d 755, 44 Va. App. 489, 2004), which Mr. Hamilton
cites in his Analysis of the Validity of Abduction claim. Incidentally, this case
was successfully argued by Charles E. Haden for the Appellant. The Court of

Appeals ruled that the abduction was incidental to the robbery. Attorney Haden is
one of the criminal defense attorneys I consulted about the facts of Mr.
Hamilton's situation.

Mr. Hamilton believes that he only did what was necessary to complete

the robberies of two pharmacies. My concern for him was that the judge or jury
would not consider actions merely incidental to the robbery would include pistol
whipping, pushing, grabbing, pointing a semi automatic 40 caliber Glock handgun
in the face, cocking the gun, and other factors [sic]. The store employees were

expected to testify that they were terrified and feared for their lives because of his
actions and Mr. Hamilton told them that he was a junkie, hurting, needed drugs,
and "don't screw with me, mother [fcker]."

(Br. Supp. Ren. Mot. Dismiss Ex. B (hereinafter, "Dansby Aff"), at 1 (emphasis added), ECF
No. 20-2.) Thus, contrary to Hamilton's assertions, counsel swears thathe conducted a pre-trial

investigation into the relevant law for the incidental detention doctrine and shared this
information withHamilton priorto his decision to plead guilty. Hamilton simply clings to a
mistaken beliefthat he could not be guilty of both abduction and robbery, despite receiving
counsel's reasoned advice that the evidence was sufficient to find him guilty of both crimes.

Hamilton fails to demonstrate any deficiency of counsel. As explained below, see infra Part
III.D.2, Hamilton's actions were sufficient to warrant a finding of guih on both the robbery and
abduction charges.

Next, Hamilton contends that counsel "was very adamant about pushing the plea

agreement on the defendant in a verbally threatening manner. [Hamilton] stated his reluctance to
take the plea[s] which had included five abductions and seven gun charges, but the defendant[']s
10

counsel would retort with a threat of more time." (§ 2254 Pet. Attach. 2.) Hamilton contends
that counsel told him "if he denied the offered plea bargain he would be convicted of all charges
and be sentenced to a mandatory minimum of thirty-three years in prison" and thus, Hamilton

"was then persuaded to submit to the plea bargain being offered to avoid a stricter punishment..
.." (Jd.) The Court fails to discern, and Hamilton fails to allege, any deficiency or resulting

prejudice from counsel's actions. Hamilton admits that despite his "reluctance" to accept the

plea offer, it was he, not counsel, who decided that he should plead guilty to limit his potential
sentencing exposure. For this reason alone, Hamilton's claim can be dismissed.
Moreover, the Court fails to discern any deficient advice provided by counsel. Counsel

explains that "Mr. Hamilton's goal was to be sentenced to the least amount of active
incarceration time to serve, regardless of the number or type of charges." (Dansby Aff. 1.)

Counsel averred that he did not think that a judge or a jury would believe that Hamilton's violent
actions were "merely incidental to the robbery." (Jd. at 2.) He swears:

I did not pressure Mr. Hamilton to accept the plea agreement, which
would result in a sentence of eighteen years for the firearm charges and probably
additional time for the other charges. The sentencing guidelines were eighteen
years. The judge sentenced Mr. Hamilton to serve the mandatory eighteen years
for the firearm convictions plus four years for the five other convictions. Mr.
Hamilton thought that the proposed agreement was too harsh with the sentencing

guidelines showing at least eighteen years to serve. I agreed that it is harsh, but a
judge trial could easily have resulted in a harsher sentence, even if some of the
charges would be dismissed. A jury would likely have been harsher than the
judge. The victims would have been formidable witnesses against Mr, Hamilton.

(Dansby Aff. 2.) Counsel reasonably advised Hamilton that he would face a higher sentence if
he proceeded to trial. Hamilton demonstrates no deficiency of counsel with regard to his advice
about pleading guilty.

11

2.

Hamilton Demonstrates No Prejudice

Additionally, Hamilton fails to show any prejudice from counsel's actions. Hamilton
fails to demonstrate that a reasonable defendant in his position, but for counsel's purportedly

deficient advice, would not have pleaded guilty and would have insisted on proceeding to trial.

Hill, 474 U.S. at 59. First, through securing a plea agreement for Hamilton, counsel successfully
reduced Hamilton's sentencing exposure. In exchange for his guilty pleas, the Commonwealth

agreed to nolle prosequi three abduction charges and three additional firearm charges. Hamilton
overlooks the fact that he almost certainly would have been convicted of each of those six
additional counts based on the overwhelming evidence of his guilt. The three additional

abduction charges eachcarried a penalty of up to life imprisonment and the three additional

firearms charges would have subjected him to an additional mandatory minimum sentence of
fifteen years to run consecutive to anyother sentence. See Va. Code Ann. § 18.2-53.1 (West

2015). Without the benefit of the plea agreement, Hamilton would have nearly doubled his
sentence based on the three additional firearm counts alone. While the judge sentenced him to

four lifesentences, and suspended all but four years on the robbery convictions, counsel

reasonably anticipated thatthe Circuit Court would not be as generous after hearing the
compelling evidence against Hamilton from all the witnesses. Thus, through his guilty plea,
Hamilton secured a much lower sentence than he faced if he had gone to trial. In light of this

much greater sentencing exposure, no reasonable defendant would have rejected the guilty pleas
and insisted on going to trial.

Finally, Hamilton also fails to demonstrate any prejudice from counsel's purported failure
to explain adequately the incidental detention doctrine. Overwhelming evidence existed that
Hamilton was guilty of both robbery and abduction despite his protestations to the contrary, thus

12

a reasonable defendant in Hamilton's position would not have insisted on going to trial. To
convict Hamilton of abduction, the Commonwealth needed to prove that Hamilton "by force,

intimidation or deception, and without legal justification or excuse, seize[d], [took],
transport[ed], detain[ed] or secrete[d] another person with the intent to deprive such other person

of his personal liberty ...Va. Code Ann. § 18.2-47(A) (West 2015). Under Virginia law
one accused of abduction by detention and another crime involving restraint of the
victim, both growing out of a continuing course of conduct, is subject upon
conviction to separate penalties for separate offenses only when the detention
committed in the act of abduction is separate and apart from, and not merely
incidental to, the restraint employed in the commission of the other crime.
Brown v. Commonwealth, 337 S.E.2d 711, 713-14 (Va. 1985). "This rule has since come to be
known as the 'incidental detention doctrine.'" Jones v. Sussex I State Prison, 591 F.3d 707, 710

(4th Cir. 2010) (citation omitted). "The only issue when abduction is charged alongside an
offense for which detention is an intrinsic element is whether any detention exceeded the

minimum necessaryto complete the required elements of the offense." Lawlor v.
Commonwealth, 738 S.E.2d 847, 869 (Va. 2013) (emphasisadded). Virginia courts have

repeatedly held thatforcing or ordering a victim to move from one location to another constitutes
abduction under Virginia law. See, e.g., Powellv. Commonwealth, 552 S.E.2d 344, 360-61 (Va.

2001) (finding defendant guilty of abduction when he ordered victim to move to a more secluded
partof her home prior to the rape); Freeman v. Commonwealth, No. 0818-13-2, 2014 WL
1707155, at *3 (Va. Ct. App. Apr. 29, 2014) (finding defendant guilty of abduction when "he

wentbeyond the minimum detention necessary to ... rob them" by detaining victims"against
their will (and thus abduct[ing] them) when he entered their offices and ordered them at gunpoint
to follow him to the reception area").

13

Hamilton's actions were more than sufficient to support both the robbery and abduction
convictions. Hamilton's actions during both robberies were "separate and apart from, and not

merely incidental to, the restraint employed in the commission" of the robberies. Brown, 337
S.E.2d at 714. During the robbery of Rite Aid, Hamilton forced the pharmacist who had a

broken leg, at gun point, to move across the pharmacy, pushed him, and struck him twice with
the handgun. (Sept, 7, 2011 Tr. 17-18.) During the robbery of the Olde Towne Pharmacy,

Hamilton"herded" three employees into the comer and ordered them at gun point to remain
there. (Sept. 7,2011 Tr. 19.) Hamilton employed more than the minimum detention necessary
to rob the victims. Based on Hamilton's conduct, ample evidence existed that he abducted the

victims. Thus, Hamilton would have been convicted of the additional abduction offenses if he
had not pled guilty.

In light of the uncontroverted evidence of his guilt of robbery and abduction, and the

significant benefits he received from entering his guilty pleas, Hamilton cannot show that a
reasonable defendant in his position would have insisted on proceeding to trial but for counsel's

failure to explain the incidental detention doctrine. Accordingly, Hamilton fails to demonstrate
prejudice from counsel's actions. Claim One will be DISMISSED.
Moreover, because Hamilton fails to demonstrate any deficiency or resulting prejudice

from counsel's purported inaccurate or incomplete advice about the incidental detention doctrine,
Hamilton also cannot show that counsel's error rendered his guilty plea not knowingly and
voluntarily made. Accordingly, Claim Two will be also DISMISSED.

14

IV.

CONCLUSION

The Renewed Motion to Dismiss (ECF No. 18) will be GRANTED. Hamilton's claims
will be DISMISSED, and the § 2254 Petition will be DENIED. The action will be DISMISSED.

The Court will DENY a certificate ofappealabilty.^
An appropriate Final Order shall issue.
It is so ORDERED.

/s/

/

Roderick C. Young

Date: December 23_, 2015

United States Magistrate Judge

Richmond, Virginia

^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.'" Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)). Hamilton fails to meet this standard. Accordingly, a certificate of appealability v^ll be
DENIED.

15