United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, Senior District Judge.
Petitioner Edward Lee Davis, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition"). Davis challenges his conviction in the Circuit Court of the City of Suffolk for possession of cocaine with intent to distribute. Davis asserts that he received the ineffective assistance from counsel:
Claim One Counsel failed to have the preliminary hearing transcribed. (Mem. Supp. § 2254 Pet. 8.) Such an omission prevented counsel from: (a) effectively cross-examining Officer Hearn, the arresting officer (see id. at 11); (b) challenging Officer Hearn's description of the area where the arrest had occurred (id. 9-10); and (c) learning how long Officer Hearn had served on the police force (id. at 9). Davis also suggests the preliminary hearing transcript would have allowed counsel to discover the information in Claims Two through Four. (Id. at 10.)
Claim Two Counsel failed to ascertain the dew point for the day of Davis's arrest. (Id.)
Claim Three Counsel failed to locate and interview the resident "whose home the defendant was arrested in front of...." (Id.)
Claim Four Counsel failed to locate and interview the owner of the bush from which the cocaine was recovered. (Id.)
Claim Five Counsel "failed to tell [Davis] that if he took the stand he would be asked about his felony status and how that would be used against him." (Id. at 22 (emphasis omitted).)
Respondents have moved to dismiss on the grounds that Davis's claims lack merit. Davis has responded. (ECF No. 11.) For the reasons set forth below, the Motion to Dismiss (ECF No. 5) will be granted.
I. PROCEDURAL HISTORY
Following a bench trial, the Circuit Court found Davis guilty of possession of cocaine with intent to distribute. The Circuit Court sentenced Davis to an active term of imprisonment of eight years and six months. Commonwealth v. Davis, No. CR08000776-00, at 1-2 (Va.Cir. Ct. July 8, 2009).
Davis appealed. On appeal, Davis asserted that there was insufficient evidence to support his conviction. Davis v. Commonwealth, No. 1277-09-1, at 1 (Va. Ct. App. Jan. 27, 2010). In rejecting that claim, the Court of Appeals of Virginia aptly summarized the evidence of Davis's guilt as follows:
[T]he evidence proved that on April 14, 2008, Officer B.C. Hearn stopped the car appellant was driving. Hearn ordered appellant to lower all the windows. Instead, appellant exited the car and fled on foot. Hearn pursued appellant and observed him put his hand in his pocket and then make a throwing motion as he ran. Only after he made the throwing motion did appellant heed the officer's commands to stop. Hearn apprehended appellant and searched the area where appellant made the throwing motion. The police found a plastic bag containing over one hundred rocks of crack cocaine with a total weight of almost seven grams. Hearn explained that the bush in which the bag was found was wet, but that the bag "did not have a drop of moisture on it."
During a search incident to arrest, the police found over three hundred dollars in cash on appellant's person. Appellant carried no ingestion devices, and the police found none in appellant's car. In his statement to the police, appellant remarked, "You didn't catch me with it, so you can't put it on me."
Appellant argues that "[t]he facts do not show that [he] threw or shoved the cocaine in the bush." Although Hearn did not see appellant release anything when he made the throwing motion, the officer observed appellant reach into his pocket and make a motion towards the bush where the cocaine was found just a short time later. Additionally, appellant did not stop running until after he made the motion and Hearn explained that although the bush was wet, the bag was dry, suggesting it had just been placed there. Finally, appellant's immediate flight upon stopping his car indicates an awareness of guilt.
Id. at 1-2. Subsequently, the Supreme Court of Virginia refused Davis's petition for appeal, Davis v. Commonwealth, No. ...