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Slate v. Vargo

United States District Court, E.D. Virginia, Alexandria Division

July 8, 2014

Scottie Lee Slate, Petitioner,
v.
Marie M. Vargo, Respondent.

MEMORANDUM OPINION

CLAUDE M. HILTON, District Judge.

Scottie Lee Slate, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2254, challenging his Circuit Court of the City of Chesapeake convictions of robbery, two counts of abduction by force, and use of a firearm in the commission of a felony. On October 28, 2013, respondent filed a Motion to Dismiss and Rule 5 Answer. Slate was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975) and has filed a reply. For the reasons that follow, Slate's claims must be dismissed.

I. Background

On May 9, 2008, a City of Chesapeake jury found petitioner guilty of two counts of abduction by force and one count of robbery. Case Nos. CR07-2210, -2214, and -2215. On June 5, 2008, the petitioner pleaded guilty to one count of use of a firearm in the commission of a felony. Case No. CR07-2211. The court sentenced petitioner to a total of forty (40) years in prison: twenty-five (25) for the robbery, five (5) years for each of the abductions, and five (5) years for the use of a firearm in the commission of a felony. The facts underlying the convictions were described by the Virginia Court of Appeals as follow:

The incident took place at about 10:00 a.m. Quynh Nguyen testified she viewed the robber for about ten minutes, seeing his face from just below his nose to his forehead because he had a sweater pulled up just beneath his nose. She watched from a distance of about twenty feet as he walked past the business. She observed him while he walked around inside the business before he pointed a gun at her and told her to move. Nguyen was one hundred percent sure of her identification of appellant as the robber, although she said he was heavier at the time of the trial. She also stated he wore camouflage pants.
Nancy Forster noticed a man wearing camouflage clothing exit the alterations business. She thought he did not appear to be a "normal" customer of the business so she "watched him" and he "was looking at her" from a distance of ten to fifteen feet. Forster estimated that she viewed the man "face-to-face" or "eye-to-eye" for five to seven seconds until he pulled his collar up to hide his face.
She testified that appellant's eyes matched the eyes of the man she encountered, although appellant appeared to be heavier than the man she saw leaving the crime scene. Forster viewed a photograph array put together by the police, but she did not identify anyone from the array, which did not contain appellant's photograph.
A forensic scientist testified that the gun recovered from near the crime scene contained a DNA profile consistent with appellant's DNA profile, stating, "[t]he probability of randomly selecting an unknown individual with a DNA profile matching the user profile... from the pistol is one in greater than 6.5 billion."
...
Appellant forced the victims at gunpoint to move into a bathroom located at the back of the business. When he was told the money was located in the front of the building, appellant shut the bathroom door and asked one of the victims where her purse was located. He then pointed the gun at the victims, and he told them not to scream or he would shoot them. He returned to the bathroom a third time and asked for any money the victims had on their persons. He threatened to shoot the victims again, shut the door, and left.

Slate v. Commonwealth, R. No. 2642-08-1 (Va.App. May 13, 2009) at 2, 3; Resp. Ex. 2.

Slate prosecuted a direct appeal, raising the sole claim that the evidence was insufficient to sustain his convictions. Resp. Exs. 2, 8. By per curiam opinion, the Virginia Court of Appeals dismissed the petition for appeal on May 13, 2009. R. No. 2642-08-1. A three judge panel reached the same result on July 14, 2009. Resp. Ex. 3. Petitioner sought further review by the Supreme Court of Virginia, but his petition was refused. Slate v. Commonwealth, R. No. 091647 (Va. Nov. 19, 2009); Resp. Ex. 4.

On July 27, 2010, Slate timely filed a petition for a state writ of habeas corpus in the Circuit Court of the City of Chesapeake County, Virginia. In his state petition, Slate brought the following claims:

A. The circuit court erred in finding the testimony offered against him at trial that identified him as the perpetrator of the offenses was reliable.[1]
A(1). The DNA analysis conducted in his case, which demonstrated the presence of two additional unknown contributors, casts a reasonable doubt upon his guilt.[2]
B. Petitioner was denied effective assistance of trial counsel when:
(1). Counsel failed to "properly investigate the evidence, " which Slate asserts included photographs provided by his family to counsel that could have undermined the credibility of the identification testimony provided by the Commonwealth's witnesses.
(2). Counsel failed to call Ms. Deena Day[3] to testify on his behalf at trial. He alleges that Ms. Day would have provided an alibi for him for the time of the offenses.
(3). Counsel failed to consult with him regarding the court interpreter's relationship with one of the Commonwealth's witnesses, which created a conflict of interest between the interpreter and witness.
(4). Counsel failed to fully subject the available evidence in the matter to further DNA analysis.
(5). Counsel rendered ineffective assistance through the cumulative effect on the individual allegations raised by the petitioner.

On November 21, 2011, the court dismissed Slate's petition. Slate v. Clarke, R. No. CL10-1899 (Va. Cir. Nov. 21, 2011). Slate appealed to the Supreme Court of Virginia, which dismissed Slate's claims "A" and "A(1)" because Slate did not perfect the appeal of these claims as required by Rule 5:17(c)(1)(iii)[4] and refused ...


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