Jones v. Director of the VA Department of Corrections
Filing
36
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Henry E. Hudson on 08/23/2016. (ccol, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
TEHGRAIN JAMAL JONES,
Petitioner,
V.
DIRECTOR OF THE VA
DEPARTMENT OF CORRECTIONS,
Respondent.
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Alffi2 3 2016
rLERK U.S. DiSTfliCl COURl
Civil Action No. 3:15CV265-HEH
MEMORANDUM OPINION
(Granting Motion to Dismiss)
Tehgrain Jamal Jones, a Virginia state prisoner proceedingpro se, brings this
petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1). The matter is
before the Court on a Respondent's Supplemental Motion to Dismiss. For the reasons set
forth below, the Supplemental Motion to Dismiss (ECF No. 26) will be granted.
1. Procedural History and Jones's Claims
Jones was convicted in the Circuit Court of the City of Norfolk, Virginia ("Circuit
Court") of one count of robbery, two counts of use of a firearm in the commission of a
felony, one count of carjacking, and two counts of conspiracy. Commonwealth v. Jones,
No. CRl 0003236, at 1 (Va. Cir. Ct. Apr. 26, 2012). The Circuit Court sentenced Jones to
a total sentence of65 years, with 40 years suspended. Id. at 2.'
' OnMarch 25,2012, prior to his sentencing in the Circuit Court, Jones filed a § 2254 petition in
this Court. See Jones v. Virginia, No. 3:12CV230-HEH, 2013 WL 4523489, at *1 (E.D. Va.
Aug. 26,2013). On August 26,2013, the Court dismissed the § 2254 petition without prejudice
because Jones had not exhausted his state court remedies. Id. at *2-3.
Jones appealed his convictions. The Court of Appeals of Virginia summarized the
evidence of Jones's guilt as follows:
[T]he evidence proved that on January 23 and 24, 2010, James Smith
received several phone calls from "Little Redge" asking Smith to meet
Little Redge at a shopping center to sell shoes to Little Redge's cousin.
Smith operated an online business, selling clothes and shoes and delivering
merchandise from his van to his customers.
Smith arrived at the shopping center at approximately 2:00 p.m. on
January 24, 2010, and stepped outside of his van to chat with friends as he
waited for Little Redge. A short time later, appellant and two other
individuals approached Smith. Appellate stopped about twelve feet from
Smith while the other two men positioned themselves "strategically"
around Smith. After Little Redge walked past Smith and his van, Smith
became concerned for his safety.
Appellant yelled to Smith, "Get in the van." Smith responded, "No,
I'm not getting in the van." Appellant lifted his shirt, revealing a handgun,
and repeated his demand. After Smith refused again, appellant stated,
"Give me the f--king keys." Smith threw the keys on the ground, backed
away from the scene, and called the police from a nearby business. When
police recovered the van several days later, Smith's merchandise had been
removed from the van, but more than a dozen cigarette butts bearing
appellant's DNA were recovered.
Smith identified appellant as one of the perpetrators from a
photographic lineup, and appellant was arrested. When appellant spoke
with Detective J. Baron, appellant admitted planning the robbery with Little
Redge, a/k/a Reginald Weaver, and Raymond Rainey, a/k/a "Bones," and
another individual. Appellant appeared at the time and place of the meeting
with Smith, arranged by Little Redge, and approached Smith with the other
men. Appellant denied having a firearm, however, and also denied taking
Smith's keys and leaving the scene in Smith's van. Upon Detective
Baron's presenting appellant with two photo arrays, appellant identified
Bones and Little Redge. Appellant told Detective Baron that he and his
accomplices ''just wanted the shoes" in the van.
At trial, Detective Baron's notes of his interview with appellant were
admitted into evidence. Nevertheless, appellant denied making most of the
statements and identifying his accomplices in the photo arrays.
Jones v. Commonwealth, No. 1182-12-1, at 2-3 (Va. Ct. App. Dec. 6, 2012). The Court
of Appeals of Virginia denied the petition for appeal. Id. at 7. On May 6, 2013, the
2
Supreme Court of Virginia refused Jones's petition for appeal. Jones v. Commonwealth,
No. 130038, at 1 (Va. May 6, 2013).
On October 2, 2013, Jones filed a petition for a writ of habeas corpus with the
Supreme Court of Virginia. Petition for Writ of Habeas Corpus at 1, Jones v. Dir., Va.
Dep 't of Corr., No. 131543 (Va. filed Oct. 2, 2013). On November 5, 2013, the Supreme
Court of Virginia dismissed Jones's petition pursuant to Slayton v. Parrigan, 205 S.E.2d
680 (Va. 1974), because Jones could have but failed to raise his claims on direct appeal.
Jones v. Dir., Va. Dep't ofCorr., No. 131543, at 1 (Va. Nov. 5, 2013).
On January 21, 2014, Jones filed a Motion to Vacate Void Judgment in the Circuit
Court. Motion to Vacate Void Judgment, Jones v. Commonwealth, No. CL14-483 (Va.
Cir. Ct. filed Jan. 21, 2014). The Commonwealth opposed Jones's Motion, arguing that
the Circuit Court lacked jurisdiction to consider the Motion because, under Rule 1: 1 of
the Rules of the Supreme Court of Virginia, the Circuit Court "lost jurisdiction to modify
or vacate the [sentencing] order" when twenty-one (21) days had passed from entry of the
sentencing order. Response in Opposition to Motion to Vacate at 2, Jones v.
Commonwealth, No. CL14-483 (Va. Cir. Ct. filed Mar. 10, 2014) (citation omitted). On
March 31, 2014, the Circuit Court denied Jones' s Motion "because none of the
allegations contained therein would render the judgment void." Jones v. Commonwealth,
No. CL14-483, at 1 (Va. Cir. Ct. Mar. 31, 2014). Jones appealed. On August 29, 2014,
the Supreme Court of Virginia refused Jones's appeal. (See Supp. Br. Supp. Mot.
Dismiss at 15 n.15.)
3
On January 8, 2015, Jones filed a second petition for a writ of habeas corpus with
the Supreme Court of Virginia. Petition for Writ of Habeas Corpus at I, Jones v. Va.
Dep't ofCorr., No. 150037 (Va. filed Jan. 8, 2015). On April 10, 2015, the Supreme
Court of Virginia dismissed Jones's petition as time-barred. Jones v. Va. Dep 't ofCorr.,
No. 150037, at 1 (Va. Apr. 10, 2015).
On April 23, 2015, Jones filed his§ 2254 Petition in this Court. 2 (§ 2254 Pet. 16.)
In his§ 2254 Petition, Jones raises the following claims for relief:
Claim One:
"Ineffective assistance of counsel in violation of due process
that is constitutionally defective through the Fifth, Sixth, and
Fourteenth Amendment[s], resulting in the conviction of one
who is actually innocent," because of counsel's failure to:
a. "[F]ile a motion to dismiss all charges or a motion for an
instructed verdict of acquittal based on the insufficiency of
the evidence for the Commonwealth's failure to prove guilt
beyond a reasonable doubt" (Br. Supp.§ 2254 Pet. I, ECF
No. 1-2); 3
b. Present an article from the Virginia Pilot in which a
spokesperson for the Norfolk Police Department stated that
carjacking is not recognized as a crime (id. at 2); and,
c. "[H]old the prosecution to its heavy burden of proof
beyond a reasonable doubt on the carjacking and robbery"
(id. at 3).
Claim Two:
"Ineffective assistance of counsel in violation of due process
for counsel's failure to object and produce evidence
contradicting the Commonwealth's version of the facts that is
constitutionally defective through the Fifth, Sixth, and
Fourteenth Amendments[s]," because of counsel's failure to:
2
This is the date that Jones states he placed his§ 2254 Petition in the prison mailing system for
mailing to this Court. The Court deems this the filed date. See Houston v. Lack, 487 U.S. 266,
276 (1988).
3
The Court employs the pagination assigned to the Brief in Support of the § 2254 Petition by the
CMIECF docketing system. The Court corrects the spelling, capitalization, and punctuation in
quotations from Jones's submissions. The Court removes the emphasis from Jones's
submissions.
4
a. "[O]bject and present evidence of the Commonwealth's
knowing uses of perjured testimony and contradictory
evidence" (id. at 4);
b. H[O]bject to the failure of the Commonwealth to disclose
exculpatory and impeachment evidence" and to "ask for a
continuance to prepare a defense for it" (id. at 5); and,
c. "[O]bject to the use of or file a suppression motion
concerning Reginald Weaver's alleged statement and Baron's
testimony and exhibits and statements" (id. at 6).
Claim Three:
"Ineffective assistan[ ce] of counsel at the sentencing phase
for counsel's failure to prepare, advocate and observe a duty
of zealous and loyal representation in violation of due
process."
(Id. at 7.)
Claim Four:
"Ineffective assistance of appellate counsel for refusing to put
any of Jones's claims in his direct appeal in violation of due
process." (Id. at 8.)
Claim Five:
"Extrinsic fraud on the Court by the Commonwealth's
intentional and knowing failure to disclose evidence and
knowing use of perjured testimony in violation of due process
as guaranteed by the Sixth and Fourteenth Amendments of
the United States Constitution; resulting in the conviction of
one who is actually innocent." (Id. at 9.)
Claim Six:
"Knowing use of perjured testimony in violation of due
process resulting in the conviction of one who is actually
innocent." (Id. at 12.)
Claim Seven:
"Extrinsic fraud on the court by the prosecution's false
representation of material fact with intent to mislead, which
prevented Defendant in judgment from obtaining benefit of
his defense, by indicting Jones under the pretense of a
fabricated victim or obtaining a search warrant and
indictment under false representation and the complaint fails
to allege facts upon which subject matter jurisdiction can be
based." (Id. at 15.)
On July 27, 2015, Respondent moved to dismiss on the grounds that the one-year
statute of limitations governing federal habeas petition bars the § 2254 Petition and that
5
Jones's claims were not properly exhausted. (Supp. Br. Supp. Mot. Dismiss 3-5, ECF
No. 11.) By Memorandum Order entered on January 15, 2016, the Court denied
Respondent's motion to dismiss without prejudice. (ECF No. 21, at 1.) With respect to
the timeliness of Jones' s § 2254 Petition, the Court noted that
Jones filed a Motion to Vacate in the Circuit Court and appealed the
dismissal of his Motion to Vacate. If the Motion to Vacate Void Judgment
tolled the limitation period pursuant to 28 U.S.C. § 2244(d)(2), Jones's
§ 2254 Petition would not be barred by the federal statute of limitations.
Nevertheless, Respondent makes no effort to explain why the limitation
period was not tolled during the pendency of the proceedings on the Motion
to Vacate.
(Id. at 1-2 (internal citation omitted).) Respondent also failed to address "Jones's
contention that any default of his claims is attributable to the ineffective assistance of
counsel." (Id. at 2 (citations omitted).) The Court directed Respondent to file a new
response to Jones's § 2254 Petition, within thirty days, that addressed the merits of
Jones's claims as well as any procedural defenses Respondent wished to raise. (Id. at 3.)
Respondent filed a supplemental motion to dismiss on grounds that Jones's claims
lack merit, that his§ 2254 Petition is barred by the statute of limitations,4 and that his
4
Respondent argues that Jones's § 2254 Petition is time-barred because his Motion to Vacate,
filed in the Circuit Court, "was an untimely challenge to the criminal conviction which did not
toll the federal statute of limitations." (Supp. Br. Supp. Mot. Dismiss 16.) In its opposition to
Jones' s Motion to Vacate, the Commonwealth asserted that the motion was untimely pursuant to
Rule 1: 1 of the Rules of the Supreme Court of Virginia. Resp. Opp. Mot. Vacate at 2, Jones v.
Commonwealth, No. CL1~83 (Va. Cir. Ct. filed Mar. 7, 2014). Rule 1:1 provides that "[a]ll
final judgments, orders, and decrees, irrespective of terms of court, shall remain under the
control of the trial court and subject to be modified, vacated, or suspended for twenty-one days
after the date of entry, and no longer." Va. Sup. Ct. R. 1: 1. Respondent argues that although the
Circuit Court did not expressly cite Rule 1:1 in its Order denying Jones's Motion to Vacate,
"[w]hen read in conjunction with the Commonwealth's ... motion to dismiss, which the order
cited, it is clear that the order applied Rule 1.1" (Supp. Br. Supp. Mot. Dismiss 16.) The Circuit
Court's Final Order denying Jones's Motion to Vacate stated: "Upon mature consideration of
the motion to vacate filed by the petitioner herein, and the response in opposition to that motion
6
claims are defaulted. 5 (Supp. Br. Supp. Mot. Dismiss 2-17, ECF No. 28.) Jones has filed
a Motion for Partial Summary Judgment (ECF No. 30), a Motion Opposing Supplemental
Brief and Motion for Summary Judgment (ECF No. 31 ), and a Motion Requesting a
Ruling on his Pending Motions For Summary Judgment (ECF No. 33). Respondent has
filed a Reply. (ECF No. 32.) As explained below, Jones's claims lack merit.
II. Ineffective Assistance of Counsel
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 of Strickland, the convicted defendant
must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within
filed by the Commonwealth, the Court denies the motion to vacate because none of the
allegations contained therein would render the judgment void." Jones v. Commonwealth,
No. CL14-483, at 1 (Va. Cir. Ct. Mar. 31, 2014). Thus, the Circuit Court denied Jones's Motion
to Vacate on the merits, not because it was untimely filed. Respondent has not provided, and the
Court has not located, any law suggesting that the mere reference to an opposition arguing
untimeliness renders a petitioner's motion not "properly filed" for purposes of statutory tolling
under 28 U.S.C. § 2244(d)(2). Respondent "agrees with the Court's previous conclusion that if
this pleading was a 'properly filed' postconviction challenge, Jones's federal petition now before
the Court would be timely." (Supp. Resp. Supp. Mot. Dismiss 15 n.15.) Given Respondent's
failure to demonstrate that the Motion to Vacate was not properly filed, the Court declines to find
that Jones's § 2254 Petition is barred by the federal limitation period.
5
With respect to procedural default, Respondent merely argues that "Martinez [v. Ryan, 132 S.
Ct. 1309 (2012)] does not excuse a petitioner's failure to comply with the federal statute of
limitations .... Consequently, because this action is time-barred under federal law, the Court
need not reach the Martinez issue." (Supp. Br. Supp. Mot. Dismiss 16-17.) However, as
discussed supra, the Court has concluded that Jones is entitled to statutory tolling for the period
during which his Motion to Vacate and appeal therefrom was pending, thus rendering his § 2254
Petition timely filed. Given the absence of any briefing by Respondent on the issue of
procedural default, "judicial economy warrants that the Court address the merits of [Jones's]
claims." Daniels v. Hinkle, No. 3:11CV675, 2012 WL 2792199, at *1 (E.D. Va. July 9, 2012)
(citing Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999)).
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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 defendant to "show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." Strickland, 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. Trial Counsel
1. Counsel's Performance Before Sentencing
In Claim One (a), Jones alleges that counsel was ineffective for failing to "file a
motion to dismiss all charges or a motion for an instructed verdict of acquittal based on
the insufficiency of the evidence for the Commonwealth's failure to prove guilt beyond a
reasonable doubt." (Br. Supp. § 2254 Pet. 1.) Specifically, Jones faults counsel for
"failing to make an objection to the trial court error lacking subject matter jurisdiction in
its failure to act in the way that the law mandates, finding Jones guilty of use of a firearm
after it found him not guilty of possession of a firearm." (Id. (citation omitted).)
At the conclusion of the bench trial, the Circuit Court "dismiss[ed] the charge of
feloniously and intentionally possessing or transporting a firearm after having previously
been convicted of a violent felony." (Sept. 27, 2011 Tr. 157-58.) In doing so, the Circuit
Court was "not persuaded that there's evidence beyond a reasonable doubt of what, in
fact, Mr. Jones may have possessed or whether another actually possessed it." (Sept. 27,
8
2011 Tr. 158.) Jones now argues that because the Circuit Court dismissed the possession
of a firearm charge, he could not be found guilty of the use of a firearm in the
commission of a felony charges. In Virginia, however, "[i]fthe accused did not actually
hold or possess the firearm, he may 'nevertheless be convicted as a principal in the
second degree of the use of a firearm in the commission of a felony where he acted in
concert with the gunman."' Paiz v. Commonwealth, 682 S.E.2d 71, 75 (Va. Ct. App.
2009) (quoting Carter v. Commonwealth, 348 S.E.2d 265, 267 (Va. 1986); Cortner v.
Commonwealth, 281 S.E.2d 908 (Va. 1981)). Moreover, the dismissal of the felon in
possession charge had no effect on the other charges. Jones admitted to police that he
had participated in the robbery and carjacking with his two codefendants. (See Sept. 27,
2011 Tr. 60-63.) Any argument by counsel that dismissal of all charges based upon the
dismissal of the felon in possession charge would have been meritless, and counsel
cannot be faulted for failing to raise a meritless claim. See United States v. Moore, 934
F. Supp. 724, 731 (E.D. Va. 1996). Jones has failed to demonstrate deficient
performance of counsel or resulting prejudice. Accordingly, Claim One (a) is hereby
DISMISSED.
In Claim One (b ), Jones suggests that counsel was ineffective for failing to present
as evidence an article from the Virginia Pilot in which a spokesperson for the Norfolk
Police Department stated that carjacking is not recognized as a crime of violence. (Br.
Supp. § 2254 Pet. 2.) The article in question, published on July 29, 2009, stated: "In
Norfolk, 'carjacking' is not a recognized term, wrote police spokeswoman Karen ParkerChesson in an e-mail. 'Carjacking however is not recognized as a crime, nor can a
9
person be convicted of carjacking."' (§ 2254 Pet. Ex. 1, ECF No. 1-3 at 1.) Jones
contends that "[t]his evidence established that Norfolk did not have jurisdiction to arrest,
indict or find Jones guilty of carjacking." (Br. Supp. § 2254 Pet. 2.) He argues that he
"was prejudiced because Counsel failed to present this article as evidence, discover the email or call Karen Parker-Chesson as a witness on the defense's behalf." (Id.) Section
18.2-58.1 of the Virginia Code, however, explicitly criminalizes carjacking anywhere in
Virginia. Va. Code Ann.§ 18.2-58.1(West2016); see also Morley v. Clarke,
No. 2:15CV134, 2016 WL 3360421, at *1 (E.D. Va. Apr. 22, 2016) (denying federal
habeas relief to a petitioner convicted of, inter alia, carjacking in the Circuit Court for the
City ofNorfolk, Virginia), Report and Recommendation adopted by 2016 WL 3360497
(E.D. Va. June 14, 2016). This article has no legal bearing on whether Jones could be
convicted under Virginia law of carjacking. Counsel cannot be faulted for failing to raise
a meritless claim. See Moore, 934 F. Supp. at 731. Because Jones has failed to
demonstrate deficient performance of counsel or resulting prejudice, Claim One (b) will
be dismissed.
In Claim One (c), Jones faults counsel for "fail[ing] to hold the prosecution to its
heavy burden of proof beyond a reasonable doubt on the carjacking and robbery." (Br.
Supp.§ 2254 Pet. 3, ECF No. 1-2.) Specifically, Jones argues that "[c]ounsel should
have filed a motion for an instructed verdict of acquittal based on insufficiency of the
evidence." (Id. at 4.) Jones faults counsel for failing to argue that he was "actually
innocent of robbery because he never took property from the victim at all, let alone by
violence or intimidation." (Br. Supp.§ 2254 Pet. 3.) He also contends that "counsel
10
should have argued that there was no violence or force used to commit the robbery with
no evidence that a firearm was used." (Id. at 4.)
The record, however, demonstrates that counsel made a motion to strike at the
conclusion of the Commonwealth's evidence challenging the sufficiency of the evidence.
(Sept. 27, 2011 Tr. 109-13.) Specifically, counsel argued that there was no evidence that
Jones committed a carjacking because Jones never took possession of the keys. (Sept.
27, 2011 Tr. 109-11.) Counsel also argued that, with respect to the robbery charge,
"there hasn't been any taking." (Sept. 27, 2011 Tr. 111-12.) The Circuit Court denied
counsel's motion. (Sept. 27, 2011 Tr. 120.) After the Commonwealth presented rebuttal
evidence, counsel renewed the motion to strike. (Sept. 27, 2011 Tr. 140-41.) The
Circuit Court again denied the motion. (Sept. 28, 2011 Tr. 142.) Counsel twice made the
exact arguments that Jones now faults him for not raising. Thus, Jones demonstrates no
deficiency of counsel. Moreover, given the abundant evidence of his guilt, Jones cannot
demonstrate prejudice. Accordingly, Claim One (c) will be dismissed.
In Claim Two (a), Jones asserts that counsel was ineffective for failing to "object
[to] and present evidence of the Commonwealth's knowing uses of perjured testimony
and contradictory evidence." (Br. Supp. § 2254 Pet. 4.) Jones first claims that counsel
failed to present evidence to establish that a search warrant related to his criminal
proceedings identified the victim as "Jeremiah Johnson-Rivera," not James Smith, who
testified at trial. (Id.) Counsel was aware, however, that this was a typographical error.
(Br. Supp. Mot. Dismiss Ex. 1 ("Purkey Aff.") if 2, ECF No. 28-1.) Jones has failed to
articulate how raising this issue would have benefitted his defense. Moreover, given the
11
overwhelming evidence of his guilt, Jones has failed to demonstrate that counsel's failure
to present any evidence with respect to this discrepancy prejudiced him in any way.
Jones also contends that counsel was ineffective for failing to present evidence
that the vehicle which he allegedly carjacked "was reported stolen by Tomeka Wallace at
1345 hours, thirty minutes before the Commonwealth's representation that at 1415 hours
James P. Smith was carjacked." (Br. Supp.§ 2254 Pet. 4.) However, Wallace, the owner
of the van, was Smith's girlfriend, and "she allowed Mr. Smith to use the van at the time
the offenses occurred." (Purkey Aff.
~
4.) Jones's attorneys ''were provided with a copy
of the tow sheet during discovery, which clearly listed the owner of the vehicle." (Id.)
Moreover, the "reports generally list a time 15-30 minutes before the time of the offense
as the 'last known secure' time, just as a point of reference for reports."
(Id.~
3.)
Counsel cannot be faulted for failing to raise a meritless claim. See Moore, 934 F. Supp.
at 731. Moreover, given the evidence against him, Jones fails to demonstrate that
counsel's decision to not raise these arguments prejudiced him in any way. Accordingly,
Claim Two (a) will be dismissed.
In Claim Two (b), Jones contends that counsel was ineffective for failing to
"object to the failure of the Commonwealth to disclose exculpatory and impeachment
evidence" and to "ask for a continuance to prepare a defense to it." (Br. Supp.§ 2254
Pet. 5.) Jones's claim refers to the fact that during trial, Smith, the victim, "contradicted
his preliminary hearing testimony that Jones never said, 'Give me your keys' and testified
that Jones did make a demand for his keys." (Id.) During cross-examination, however,
Jones's counsel specifically questioned Smith with respect to his inconsistent statements.
12
(Sept 28, 2011Tr.45-46.) Counsel therefore knew of the statement Smith had given at
the preliminary hearing, and impeached Smith with that statement during trial. Jones
fails to describe what more he believes counsel should have done and how a continuance
would have helped his defense. Thus, Jones fails to demonstrate deficiency of counsel or
resulting prejudice. Accordingly, Claim Two (b) will be dismissed.
In Claim Two (c), Jones alleges that counsel was ineffective for failing to "object
to the use of or file a suppression motion concerning Reginald Weaver's alleged
statement and Baron's testimony and exhibits and statements." (Br. Supp. § 2254 Pet. 6.)
At trial, the Commonwealth called Reginald Weaver as a witness. (Sept. 28, 2011 Tr.
107.) However, Weaver was "unwilling to testify" without talking to his attorney. (Sept.
28, 2011 Tr. 109.) The only reference to Weaver's statement to police was when
Detective Baron testified that, from her interview with Weaver, she developed Jones as a
suspect. (Sept. 28, 2011 Tr. 54-55.) Jones fails to explain why trial counsel should have
objected to this testimony, or how any failure to object prejudiced him. Accordingly,
Claim Two (c) will be dismissed.
2. Counsel's Performance at Sentencing
In Claim Three, Jones contends that counsel was ineffective "at the sentencing
phase for counsel's failure to prepare, advocate and observe a duty of zealous and loyal
representation in violation of due process." (Br. Supp. § 2254 Pet. 7 .) Jones argues that
counsel "did not want to help Jones and it is clear by his statements." (Id. at 8.)
According to Jones, counsel "was never an active advocate, zealous and loyal for Jones, a
violation of the Sixth Amendment." (Id.)
13
At sentencing, counsel Thomas Reed set forth several arguments on Jones' s behalf
"with respect to dismissing all of the charges." (Apr. 19, 2012 Tr. 6.) First, Jones
requested that Reed raise an argument that his convictions for robbery and carjacking
should be overturned because "the intent to steal did not coexist with the force, threat, or
intimidation. (Apr. 19, 2012 Tr. 10.) Reed also argued, on behalf of Jones, "that [Jones]
was denied his Sixth Amendment right of confrontation when Reginald Weaver took the
stand and refused to testify." (Apr. 19, 2012 Tr. 10.) Reed also contended "that the
Commonwealth encouraged ... the victim to testify untruthfully with regard to whether
or not the defendant told him to throw down the keys by virtue of the fact or in part
because the victim was still in the courtroom when Ms. Purkey made her opening
statement." (Apr. 19, 2012 Tr. 11.) Finally, Reed asked the Circuit Court to "seriously
consider the robbery, the firearm, and the conspiracy with respect to the shoes in the van
[because] there was no separate threat of violence with respect to the shoes .... " (Apr.
19, 2012 Tr. 14.)
From the record, it is clear that counsel zealously advocated on behalf of Jones at
sentencing. Jones fails to identify what more he believes counsel should have done at
sentencing. Jones demonstrates neither deficiency or counsel nor resulting prejudice.
Thus, Claim Three will be dismissed.
B. Appellate Counsel
In Claim Four, Jones contends that appellate counsel was ineffective "for refusing
to put any of Jones' s claims in his direct appeal in violation of due process." (Br. Supp.
§ 2254 Pet. 8.) According to Jones, he "sent [appellate counsel] a letter listing several
14
claims that he felt should be raised. Included were claims that the Commonwealth
knowingly used false testimony; failure to disclose evidence; ineffective assistance of
counsel; prosecutorial misconduct; trial court error; constitutional and due process
violations. Counsel rejected the suggested claims." (Id.)
"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) (citing Strickland, 466 U.S. at
688, 694). 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, 477 U.S. 527, 536 (1986) (quoting Jones 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 Pruett
v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)). '"[O]nly when ignored issues are
clearly stronger than those presented, will the presumption of effective assistance of
counsel be overcome."' Id. (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)).
As an initial matter, Jones's conclusory allegations regarding appellate counsel,
without any factual support, fail to establish any deficiency or counsel or resulting
prejudice. See Sanders v. United States, 373 U.S. 1, 19 (1963) (finding denial of a habeas
petition appropriate where it "stated only bald legal conclusions with no supporting
factual allegations"). To the extent that Jones faults counsel for not raising the claims
15
Jones now raises in his§ 2254 Petition, the undersigned has determined, as discussed
supra in Part B.1 and infra in Part C, that those claims lack merit. Thus, Jones cannot
demonstrate prejudice. See Bell, 236 F.3d at 164 (citation omitted). Jones has simply not
met his burden to demonstrate that these various arguments would have been stronger
than those counsel chose to present on appeal. See id. (citation omitted). 6 Because Jones
has demonstrated neither deficiency of appellate counsel nor resulting prejudice, Claim
Four will be dismissed.
III. Prosecutorial Misconduct
In Claim Five, Jones alleges that the Commonwealth committed "extrinsic fraud
on the court by ... intentionally and knowingly fail[ing] to disclose evidence and
knowing use of perjured testimony in violation of due process as guaranteed by the Sixth
and Fourteenth Amendments of the United States Constitution." (Br. Supp.§ 2254 Pet.
9.) Jones first contends that the Commonwealth violated Brady v. Maryland, 373 U.S.
83 (1963), when it failed to disclose the victim's statement, made during the preliminary
hearing, that Jones had not made any demand for the victim's keys. (Br. Supp.§ 2254
Pet. 9-10.)
Brady and its progeny "require[] a court to vacate a conviction and order a new
trial if it finds that the prosecution suppressed materially exculpatory evidence." United
States v. King, 628 F.3d 693, 701 (4th Cir. 2011). Accordingly, in order to obtain relief
under Brady, a litigant must "( 1) identify the existence of evidence favorable to the
accused; (2) show that the government suppressed the evidence; and (3) demonstrate that
6
On appeal, counsel argued that the "evidence was insufficient to support [Jones's] convictions."
Jones v. Commonwealth, No. 1182-12-1, at 1 (Va. Ct. App. Dec. 6, 2012).
16
the suppression was material." Id (citing Monroe v. Angelone, 323 F.3d 286, 299 (4th
Cir. 2003)). However, as discussed supra in Part B. l.a, during trial, Jones's counsel
impeached Smith with respect to his inconsistent statements. (Sept 28, 2011 Tr. 45-46.)
The United States Court of Appeals for the Fourth Circuit "ha[s] explained that
information actually known by the defendant falls outside the ambit of the Brady rule."
United States v. Roane, 378 F.3d 382, 402 (4th Cir. 2004) (citation omitted). Because
Smith's prior statement was actually known by Jones's defense, no Brady violation
occurred.
Jones also contends that the Commonwealth violated Brady by failing to disclose
an exculpatory statement that co-defendant Reginald Weaver made to the police. (Br.
Supp. § 2254 Pet. 11-12.) Specifically, Jones alleges that Weaver's statement
"implicat[ing] Jones as the gunman" was exculpatory because "it [was] relevant to
Jones's role in [the] conspiracy, and would have allowed the defense to investigate
[Weaver's] involvement." (Id. at 12.) By Jones's own admission, Weaver's statement
implicating Jones as the gunman was inculpatory, not exculpatory, and therefore was not
"subject to constitutional requirements of disclosure under Brady." Gardner v. Dixon,
No. 91-4010, 1992 WL 119879, at *9 (4th Cir. June 4, 1992).
In sum, the Commonwealth did not commit any violations of Brady with respect
to Smith's and Weaver's statements. Accordingly, Claim Five will be dismissed.
In Claim Six, Jones contends that the Commonwealth violated his rights by its
"knowing use of perjured testimony in violation of due process resulting in the conviction
of one who is actually innocent." (Br. Supp.§ 2254 Pet. 12.) Specifically, Jones argues
17
that ''the prosecutor elicited false testimony when she encouraged and allowed the victim
to testify that a demand for his keys w[as] made." (Id. at 13.) Jones also sets forth other
inconsistencies between Smith's testimony at the preliminary hearing and his testimony
at trial. (Id. at 13.)
To prove a violation of due process based on false testimony, a petitioner must
prove his conviction was "obtained through use of false evidence, known to be such by
representatives of the State." Napue v. ll/inois, 360 U.S. 264, 269 (1959) (citations
omitted); see United States v. Tanner, 61F.3d231, 236 (4th Cir. 1995) (requiring a
defendant to prove "the prosecution knew or should have known at trial" that testimony
was false in order to establish a due process violation (citing Napue, 360 U.S. at 269)). A
convicted defendant bears a "heavy burden" in demonstrating that a witness testified
falsely. United States v. Griley, 814 F.3d 967, 971 (4th Cir. 1987). Mere variations or
inconsistencies in a witness's testimony fail to demonstrate the witness testified falsely,
much less that the prosecution knew the witness testified falsely. Tanner, 61 F.3d at 236;
Griley, 814 F.2d at 971 (citing Overton v. United States, 450 F.2d 919, 920 (5th Cir.
1971)).
Although Jones lists several purported false statements made by Smith (see Br.
Supp.§ 2254 Pet. 13), he fails to demonstrate that these statements were false, much less
that the prosecution knew the statements to be false. Because Jones fails to demonstrate
that the prosecution knowingly used false testimony, Claim Six will be dismissed.
In Claim Seven, Jones states in a confusing manner:
18
Extrinsic fraud on the court by the prosecution's false representation of
material fact with intent to mislead, which prevented Defendant in
judgment from obtaining benefit of his defense, by indicting Jones under
the pretense of a fabricated victim or obtaining a search warrant and
indictment under false representation and the complaint fails to allege facts
upon which subject matter jurisdiction can be based.
(Br. Supp. § 2254 Pet. 15.) Jones first alleges that Detective Baron "fraudulently induced
the magistrate to sign the search warrant of phone records [and] [t]hen fraudulently
induced the Grand Jury by fabricating a victim." (Id) The search warrant for the phone
records referred to "Jeremiah Johnson-Rivera" as the victim, rather than James Smith.
(Id.) However, "[t]his was a typographical error, due to copying of information from a
prior affidavit unrelated to Mr. Jones's case." (Purkey Af£
~
2.) Jones, however, fails to
demonstrate that this misnomer "was critical to the probable cause determination."
Ewing v. City o/Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009). Jones also fails to
demonstrate how this typographical error prejudiced him in any way.
Jones also asserts that the Circuit Court lacked subject matter jurisdiction over his
criminal proceedings because the "elements that constitute robbery and carjacking [were]
not established." (Br. Supp.§ 2254 Pet. 16.) Jones bases his argument on the victim's
preliminary hearing testimony, during which the victim testified that Jones never made a
demand for the keys. (Id.) Jones also argues that the Circuit Court lacked subject matter
jurisdiction because "[t]he victim was altered and the indictment was not founded on a
complaint in writing sworn to by a competent witness, as required by Code 1887, § 3990
(Va. Code 1904, p. 2099.)" (Id.) Jones further contends that the Circuit Court "did not
have active jurisdiction because the service of process was not fair and created under
19
false pretense." (Id.) Jones's claim, however, "rests solely upon an interpretation of
Virginia's case law and statutes, [and] it is simply not cognizable on federal habeas
review." Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998) (citation omitted).
Accordingly, Claim Seven will be dismissed.
IV. Conclusion
For the foregoing reasons, the Court will grant Respondent's Supplemental
Motion to Dismiss (ECF No. 26) and will dismiss Jones's claims. Jones's § 2254
Petition will be denied. Jones's Motion for Partial Summary Judgment (ECF No. 30) and
Motion for Summary Judgment (ECF No. 31) will be denied. Jones's Motion Requesting
Ruling on Pending Summary Judgment Motions (ECF No. 33) will be denied as moot.
The action will be dismissed. The Court will deny a certificate of appealability.
An appropriate Final Order will accompany this Memorandum Opinion.
"W'J"
Isl
Henry E. Hudson
United States District Judge
Date: ~vey2.3 201'
Richmond, irginia
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