Farthing v. Beale

Filing 19

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 07/07/2017. Copy mailed to pro se petitioner. (tjoh, )

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

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JUL - 7 2017

Richmond Division

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SEAUN LLWELLYN FARTHING,
Petitioner,
Civil Action No. 3:16CV759-HEH

V.

JAMES V. BEALE,

Respondent.
MEMORANDUM OPINION

(Granting Respondent's Motion to Dismiss)

Seaun Llwellyn Farthing, a Virginia inmate proceeding pro se, filed this petition
for a writ of habeas corpus under 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1)

challenging his convictions in the Circuit Court of the City of Newport News, Virginia

("Circuit Court"). Respondent has moved to dismiss. (ECF No. 12.) Farthing has

responded. (ECF No. 16.) For the reasons that follow, the Motion to Dismiss will be
granted.
1. PROCEDURAL HISTORY

Farthing was indicted and, following a bench trial, convicted of one count of

attempted breaking and entering, one count of attempted malicious wounding, two counts
of use of a firearm in commission of a felony, one count of maliciously discharging a

firearm in an occupied dwelling, one count of possession of a firearm by a felon, and one
misdemeanor count of brandishing a firearm. (ECF No. 14-3, at 2, 4.)

The Court of Appeals of Virginia aptly summarized the evidence of Farthing's
guilt as follows:

fc

[T]he evidence presented at trial established that Carl Warner arrived at a
boarding house where he lived on the third floor. Upon entering the house,
Warner stopped briefly on the second floor and spoke with Ramona White,
until White's boyfriend, appellant, arrived shortly thereafter. Warner then
proceeded to his room on the third floor.
"Not long [there]after" Warner heard "loud noises" as well as
someone screaming. He also heard "someone coming up the steps, asking,
'Where is she at?"' Warner walked toward his door in order to look into

the hallway.

As he reached for his door. Walker described the door as

imploding in on him. "The top hinge came off and the door sort of came
into . .. [his] body. At that time[,] [Warner] saw [appellant] point a
weapon at [him] ... a big silver gun." As Warner attempted to shut the
door, he heard the gun discharge.
He described it as "almost
simultaneously as [he] reached for the knob." Warner shouted to appellant
from behind the door that he was going to call the police; as Warner dialed
911, he heard "a person run down the steps
" Warner hid in his room
until the police arrived.
Warner testified during appellant's trial, as described above. Warner

reiterated that it was appellant who pointed a gun in Warner's face. Warner
had observed appellant at the boarding house on previous occasions and
was "able to recognize [appellant]" during the incident. Warner "ha[d] no
doubt in [his] mind" and was "positive" in his identification of appellant.
Another resident of the boarding house, Larry Johnson, also testified
for the Commonwealth. Johnson testified that he was in his room on the

second floor of the boarding house when White "came and asked to use

[his] phone." While White was using his phone, Johnson observed
appellant approach White and begin hitting her in the face and head.
Johnson tried to pull appellant off White but stopped when he saw that
appellant had a gun. Johnson then returned to his room. After "it got
quiet," Johnson "looked back out in the hallway, and [he saw appellant]
was laying [on the floor] in front of [White's] door." Appellant appeared to
be sleeping or passed out. "Everything was quiet" for the next "twenty to
thirty minutes," when Johnson described hearing a noise like "maybe
somebody [falling]." Warner later came down the steps to the second floor
and Johnson learned that Warner's door had been kicked in.
Officer Andrew Amarillo testified that he was dispatched in

response to Warner's 911 call. He described approaching Warner's room
and finding "[t]he door [to Warner's room] was actually off its hinges."
Officer Amarillo "had to force the door open to make contact with"

Warner. After securing the scene and making contact with Warner, Officer
Amarillo "locate[d] one [shell] casing right in front of the door [to
Warner's room]." "There [was] a hole in the doorknob . . .just above the
doorknob [with a bullet lodged in it], and there [was] a break in
the ... doorknob."

White testified on behalf of the appellant. She denied that appellant
was at the boarding house on the day in question. Rather, she testified that
she received a visit on that day from an individual named George
Blackwell. White denied having a confrontation or fight with Blackwell.
Asked during cross-examination if she had approached Warner or Johnson
after the incident and had asked them to recant their testimony, White
denied having done so.
Appellant testified on his own behalf He denied being at the
boarding house during the day in question. He also denied owning a
firearm. He admitted that he had two prior felony convictions.
Following appellant's testimony, the Commonwealth recalled
Warner and Johnson as rebuttal witnesses.

Warner testified that White

approached him after the incident, apologizing for appellant's behavior and
explaining that appellant "had been drinking and smoking" on the day in
question. Johnson testified he was also approached by White, who asked
that Johnson not testify.

(Id. at 1-3 (alterations in original).)

Following an unsuccessful direct appeal and state petition for a writ of habeas

corpus. Farthing filed this instant § 2254 Petition. Farthing demands relief upon the
following grounds:
Claim 1

(a) Commonwealth witness Carl Warner committed perjury.
(b) Commonwealth witness Larry Johnson committed perjury and
testified to matters unrelated to the charged offenses.

(c) Trial counsel was ineffective for failing to impeach Warner and
Johnson about their perjured testimony and preserve the issue for
appeal.

(d) Trial counsel failed to file a motion for discovery to obtain
information about the Commonwealth's witnesses and the scene of
the crime that would have been favorable to the accused.
Claim 2

Counsel was ineffective for failing to move to sever the charge of

possession of a firearm by a convicted felon.
Claim 3

Counsel was ineffective for failing to argue that a rented room inside

a boarding house is not a dwelling house for purpose of proving
burglary.
Claim 4

Counsel was ineffective for failing to argue that attempted burglary
with intent to commit assault and battery is a lesser included offense

of attempted malicious wounding with intent to maim.
Claim 5

Counsel should have cross-examined Detective Snapp.

Claim 6

Counsel failed to object to Johnson's perjured testimony that
Farthing hit White with a gun.

Claim 7

Counsel failed to file a motion for discovery which would have
resulted in the Commonwealth turning over evidence required under

Brady v. Maryland, 373 U.S. 83 (1963).'
Claim
Claim 9

Claim 10

Counsel should have argued that a rented room did not
constitute a dwelling house.
Counsel should have argued that Farthing could only be convicted of

one count of use of a firearm because he only fired a single shot.
Counsel should have objected to the prosecutor's vouching for the
Commonwealth's witnesses and stating that Farthing's witness,
Ramona White, had lied.

Claim 11

Counsel's errors, in the aggregate, denied Farthing the effective
assistance of counsel.

Respondent asserts that a number of Farthing's claims are procedurally defaulted.
In a somewhat discordant fashion. Farthing suggests that the ineffective assistance of
counsel constitutes cause to excuse his defaults. Given the utter lack of merit of

Farthing's claims and the current state of the law, judicial efficiency dictates simply

proceeding to the merits ofFarthing's claims rather than attempting to untangle the
procedural provenance ofthe claims and then deciding whether review is warranted.
Martinez v. Ryan, 566 U.S. 1, 21-22 (2012) (Scalia, J., dissenting) (observing that as "a

consequence oftoday's decision the States will always be forced to litigate in federal
oo
habeas, for all defaulted ineffective-assistance-of-trial-counsel claims (and who knows
what other claims)... the validity of the defaulted claim (where collateral-review
counsel was not appointed)").
II.

ANALYSIS

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

show 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, a convicted defendant
^This claim is largely redundant of Claim 1(d).
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must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within
the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577,
588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component
requires a convicted 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, the Court need not determine whether counsel performed deficiently if the claim

is readily dismissed for lack of prejudice. Id. at 697.
A.

Alleged Perjury by the Commonwealth's Witnesses

In Claims 1(a), 1(b), 1(c), and 6, Farthing contends that Carl Warner and Larry

Johnson committed perjury and that counsel acted deficiently by failing to pursue the

issue. To prove a violation of due process based on false testimony, a petitioner must

prove his conviction was "obtained through use offalse evidence, known to be such by
representatives ofthe State." Napue v. Illinois, 360 U.S. 264, 269 (1959) (citations
omitted);

United States v. Tanner, 61 F.3d 231, 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.2d 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 at236;

Griley, 814 F.2d at 971 (citing Overton v. UnitedStates, 450 F.2d 919, 920 (5th Cir.
1971)).

To support his assertion that Warner committed perjury, Farthing directs the Court
to minor discrepancies between Warner's testimony at trial and Warner's testimony at the

preliminary hearing, and also the initial police report. Farthing's trial counsel utilized
some of these variations in Warner's testimony to attempt to impeach Warner at trial.

Warner, however, supplied fairly convincing explanations for any variance in his
testimony.

The Court has reviewed the entirety of the trial transcript and the preliminary

hearing transcript. The minor variances in Warner's testimony fail to demonstrate that
Warner testified falsely. Further, counsel was not deficient for failing to pursue such a

claim or for not pursuing any additional impeachment Farthing urges here. The State

Habeas Opinion (ECF No. 14-10) contains a more detailed discussion as to the many
instances where Farthing charged that the witnesses lied and why such charges lack
merit. For example,

petitioner contends Warner's preliminary hearing testimony that he did not
give police the name of his assailant on the night of the shooting is
contradicted by police reports that show he told police it was White's

boyfriend, "Shawn." Petitioner alleges Warner's preliminary hearing
testimony that he did not hear a knock on his door before it was forced
open is contradicted by police reports that show he initially told police he
did hear a knock before his door was forced open.

Petitioner alleges

Warner's preliminary hearing testimony that after petitioner shot at the door
Warner "fell up against the wall right next to the door" contradicted his trial
testimony that after the shot he "lean[ed] to the side and started yelling"
that he was calling the police. Petitioner ftirther alleges Warner's

preliminary hearing testimony that he slammed his door shut after
petitioner forced it open contradicted his trial testimony that the door would
not shut all the way and he had to hold it closed. Petitioner also alleges

Warner's preliminary hearing testimony that no part of petitioner's body

entered his room contradicted his trial testimony that petitioner's hand
broke the threshold of his door.

State Habeas Op. 4-5. The Supreme Court of Virginia accurately observed that:
The record, including the trial transcript, demonstrates counsel focused his
cross-examination of Warner on his ability to view the perpetrator in the
brief moment the door was open.
Counsel reasonably could have
determined Warner's identification of petitioner as his assailant was the
most crucial portion of his testimony and the other inconsistencies in his

testimony were minor, did not establish Warner was committing perjury,
and would not be useful in impeaching his identification of petitioner.
Id. at 5.

Farthing's charge that Johnson committed perjury is even thinner than his claim
that Warner lied. Farthing bases his charge that Johnson lied on the fact that Farthing's

girlfriend, Ramona White, denied that Farthing had attacked her and the absence of

physical evidence corroborating that White had been attacked. These facts fail to provide
any viable basis for concluding that Johnson committed perjury. Further, contrary to

Farthing's assertion, Johnson's testimony that Farthing had struck White earlier in the
evening was highly relevant to the case against Farthing. The fight confirmed that
Farthing was angry with White and explained why Farthing went to Warner's room

looking for White. As Farthing has demonstrated neither deficiency nor prejudice.
Claims 1(a), 1(b), 1(c), and 6 will be dismissed.

B.

Alleged Failure to Discover Exculpatory Information

In Claims 1(d) and 7, Farthing faults counsel for failing to file a motion for

discovery to obtain information about the Commonwealth's witnesses and the scene of
the crime that would have been favorable to Farthing. "The record, including the

affidavit of trial counsel, demonstrates counsel decided not to file a discovery motion

because the Commonwealth had an open file policy, which was only applicable when
defense counsel waived formal discovery. Counsel determined the open file
policy provided him with greater access to the Commonwealth's evidence." State
Habeas Op. 2, ECF No. 14-10. Additionally, Farthing presents no plausible allegations
of what favorable evidence such a motion would have unearthed. Thus, Farthing fails to

demonstrate deficiency or prejudice. See United States v. Terry, 366 F.3d 312, 316 (4th

Cir. 2004) (requiring "concrete evidence" of exculpatory testimony); Bassette v.

Thompson, 915 F.2d 932, 940-^1 (4th Cir. 1990) (requiring proffer of mitigating
evidence to state a claim of ineffective assistance). Claims 1(d) and 7 will be dismissed.
C.

Failure to Move to Sever

In Claim 2, Farthing contends that counsel was ineffective for failing to move to

sever the charge ofpossession of a firearm by a convicted felon so that the trier of fact
would not be biased by Farthing's criminal record. Here, Farthing was tried by a judge.

"A judge, unlike ajuror, is uniquely suited by training, experience and judicial discipline
to disregard potentially prejudicial comments and to separate, during the mental process

ofadjudication, the admissible from the inadmissible, even though he has heard both."
Eckhartv. Commonwealth, 279 S.E.2d 155, 157 (Va. 1981) {cWxngFlanneryv. City of

Norfolk, 218 S.E.2d 730, 735 (Va. 1975); Akers v. Commonwealth, 216 S.E.2d 28, 31
(Va. 1975)). In rejecfing this claim, the Supreme Court ofVirginia noted:
petitioner elected to testify at trial, as a result ofwhich petitioner's status as
a convicted felon would have been presented to the trial court whether or
not counsel moved to sever the charges. Under the circumstances, counsel

reasonably determined there would be no benefit to having the charge of
possession of a firearm by a convicted felon tried separately.

State Habeas Op. 4 (citing Eckhart, 279 S.E.2d at 157). As Farthing has demonstrated
neither deficiency nor prejudice, Claim 2 will be dismissed.
D.

Failure to Raise Legal Challenges

In Claims 3 and 8, Farthing complains that counsel was ineffective for failing to

argue that a rented room inside a boarding house is not a dwelling house for the purpose
of proving burglary. In rejecting this claim, the Supreme Court of Virginia obser\'ed:
Petitioner was convicted of burglary, in violation of Code § 18.2-91,

which, in conjunction with Code§ 8.01-90, prohibits entering a dwelling
house in the nighttime with intent to commit assault and battery or larceny.
The Court of Appeals of Virginia held in Hitt v. Commonwealth, 43 Va.

App. 473, 481-82, 598 S.E.2d 783, 787 (2004), that the statutory definition
of a "dwelling house" under Code § 18.2-90 did not include "individual
rooms or compartments within... a 'residence' that are not 'dwelling
houses' in and of themselves (such as a rented room within a larger

dwelling, intended to be the place of habitation/residence for the individual
residing therein)." Counsel reasonably could have determined the definition
of a dwelling house articulated in Hitt encompassed Warner's individual
room in the boarding house, it was not necessary to have an investigator
establish that fact, and any argument to the contrary would have been futile.

Id. at 8-9. This decision puts to rest Farthing's assertion that counsel acted deficiently or
that counsel's conduct prejudiced Farthing. Richardson v. Branker, 668 F.3d 128, 141

(4th Cir. 2012) ("When a claim of ineffective assistance ofcounsel raised in a habeas
corpus petition involves an issue unique to state law,... a federal court should be
especially deferential to a state post-conviction court's interpretation of its own state's
law."). Claims 3 and 8 will be dismissed.

Next, in Claim 4, Farthing asserts that counsel was ineffective for failing to argue

that attempted burglary with intent to commit assault and battery is a lesser included
offense of attempted malicious wounding with intent to maim. The Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution provides that no person

shall "be subject for the same offense to be twice put in jeopardy of life and limb." U.S.
Const, amend V. "Among the protections guaranteed by this clause is protection against

multiple punishments for the same offense." United States v. Johnson, 32 F.3d 82, 84
(4th Cir. 1994) (citation omitted). The established test for determining whether two
offenses are sufficiently distinguishable to permit the imposition of cumulative

punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 (1932).
Namely, "[t]he applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether

there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not

" Id. "This test emphasizes the elements of the two crimes.

'If each requires proofof a fact that the other does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proofoffered to establish the crimes
Brown v. Ohio, 432 U.S. 161, 166 (1977) {(\vioWng lannelli v. United States, 420 U.S.
770, 785 n.l7(1975)).

The crimes of attempted burglary with intent to commit assault and battery and

attempted malicious wounding clearly require proof ofan additional fact which the other
does not. See Robertson v. Commonwealth, 525 S.E,2d 640, 644 (Va. Ct. App. 2000)

(setting forth the elements for burglary which requires, inter alia, breaking and entering);
Crawley v. Commonwealth, 492 S.E.2d 503, 505 (Va. Ct. App. 1997) (observing that in
"orderto convict an accused of attempted malicious wounding, the Commonwealth must

prove that the accused: ... intended to 'maliciously shoot, stab, cut orwound any person

orby any means cause bodily injury with the intent to maim, disfigure, disable orkill'"

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(quoting Va. Code Ann. § 18.2-51)). Accordingly, because Farthing fails to demonstrate
deficiency or prejudice, Claim 4 will be dismissed.
E.

Failure to Cross-Examine Detective Snapp

In Claim 5, Farthing criticizes counsel for not cross-examining Detective Snapp.

Farthing notes that Johnson testified that he told Detective Snapp that he "saw the
Petitioner use a key and come up the steps to the second floor. Detective Snapp didn't
record that on the night of the date in question nor did [Johnson] discuss the issue with
Detective Snapp when she showed [Johnson] the photospread." (ECF No. 2, at 14

(capitalization corrected).) First, counsel could not cross-examine Detective Snapp as

Detective Snapp never testified at Farthing's trial. Second, counsel reasonably declined
to call Detective Snapp as a defense witness because a review of Detective Snapp's
Probable Cause Affidavit (ECF No. 1-1) reflects that she would largely have

corroborated Johnson's testimony. As Farthing demonstrates neither deficiency nor

prejudice. Claim 5 will be dismissed.
F.

Failure to Challenge Convictions on Multiple Firearm Counts

In Claim 9, Farthing asserts that counsel should have argued that Farthing could

only be convicted of one count of use ofa firearm because he only fired a single shot. As
explained by the Supreme Court of Virginia, this assertion lacks merit:
[Virginia] Code 18.2-53 prohibits the use, attempted use, or threatening
display of a firearm in the commission of certain felonies and the actual
firing of the weapon is not necessary. Further, a defendant may "be
convicted and sentenced for more than one charge under Code § 18.253.1

even though the charges arose from a single incident," because "[i]t is the
identity of the offense and not of the act which is dispositive." Winston v.
Commonwealth, 268 Va. 564, 607, 604 S.E.2d 21, 45 (2004) (quoting

Flythe v. Commonwealth, 221 Va. 832, 834-35, 275 S.E.2d 582, 583-84
(1981)). Counsel reasonably could have determined any argument to the
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contrary would have been futile. 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.

State Habeas Op. at 9-10 (alteration in original). Accordingly, Claim 9 will be
dismissed.

G.

Alleged Bolstering and Vouching

In Claim 10, Farthing faults counsel for not objecting when the prosecutor stated

that White lied and impermissibly bolstered and vouched for the Commonwealth's

witnesses. With respect to his complaints about the prosecution's questioning of White,
the Supreme Court of Virginia noted:

The record, including the trial transcript, demonstrates Johnson and Warner

testified petitioner visited White at the boarding house on the day of the
shooting. White testified petitioner did not visit her, that her visitor had
been George Blackwell, a friend from "way back." She had seen Blackwell
at the store earlier in the day and invited him to her room for drinks. The

prosecutor cross-examined White, asking if she were lying and establishing
she did not know where Blackwell lived, could not recall the last time she

had seen him, and had not told police about him. White became combative

and told the prosecutor it was his job to find Blackwell, to which the
prosecutor responded "[t]o find someone who does not exist?" The
prosecutor subsequently asked White ifshe had created Blackwell.

Id. at 10-11. This Court agrees with the Supreme Court of Virginia that "[t]rial counsel

reasonably could have determined this cross-examination, while vigorous, was not

impermissibly argumentative or aggressive and that any objection to the contrary would
have been futile." Id. at 11.

Farthing contends that the prosecutor impermissibly vouched for the
Commonwealth's witnesses when he stated, "There's no reason to not believe anything

that the witnesses had to say

[T]here's no reason why . .. they would make this
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up ...(Oct. 10, 2013 Tr. 106.) The Supreme Court of Virginia aptly explained the
lack of merit for this claim:

The record, including the trial transcript, demonstrates the prosecutor made
this statement in the context of an argument that there was no evidence
adduced at trial that Johnson and Warner had any motive for lying about
petitioner. Counsel could reasonably have determined the prosecutor's
argument was based on the evidence at trial, Elliot v. Warden of the Sussex
I State Prison, 274 Va. 598, 618, 652 S.E.2d 465, 483 (2007), and did not

improperly express a "personal opinion on the credibility of the witnesses.
Jones V. Commonwealth, 218 Va. 732, 737, 240 S.E.2d 526, 530 (1978).
Counsel thus reasonably could have determined any objection would have
been without merit.

State Habeas Op. 11. Because Farthing has not demonstrated deficiency or prejudice.
Claim 10 will be dismissed.

H.

Cumulative Analysis

In Claim 11, Farthing contends that the cumulative effect of counsel's errors

resulted in prejudice. Farthing's attempt to demonstrate cumulative prejudice fails, as
none of counsel's actions were constitutionally deficient. Fisher v. Angelone, 163 F.3d

835, 853 (4th Cir. 1998) ("[A]n attorney's acts oromissions 'that are not unconstitutional

individually cannot be added together to create a constitutional violation.'" (quoting

Wainwrightv. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996))). Accordingly, Claim 11
will be dismissed.

Finally, the Court notes that it is not always clear whether Farthing is challenging

the prosecutor's conduct directly or faulting counsel for not raising an objection to the
prosecutor's conduct. Where appropriate, the Court has considered Farthing's claims as
free standing claims of prosecutorial misconduct. Nevertheless, Farthing fails to

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demonstrate the prosecutor acted improperly. Furthermore, considering the compelling

evidence of Farthing's guilt, no reasonable probability of a different result exists.
III.

CONCLUSION

Farthing's claims will be dismissed. The Motion to Dismiss (EOF No. 12) will be

granted. The § 2254 Petition will be denied. The action will be dismissed. The Court
will deny a certificate of appealability.

An appropriate Order will accompany this Memorandum Opinion.

/s/

Henry E. Hudson
United States District Judge
Date:

Richmond, VA

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