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Hill v. Clarke

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

November 14, 2014

LAMAR S. HILL, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

MEMORANDUM OPINION

JOHN A. GIBNEY, Jr., District Judge.

Lamar S. Hill, a Virginia state prisoner proceeding by counsel and in forma pauperis, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his conviction in the Circuit Court of the City of Richmond, Virginia ("Circuit Court") for possession of crack cocaine with intent to distribute. By Memorandum Opinion and Order entered March 20, 2013, the Court dismissed Claim Two and the state law portions of Claims Three and Four, denied Respondent's Motion to Dismiss in part, and ordered Respondent to file further briefing. Hill v. Clarke, No. 3:12CV174, 2013 WL 1165256, at *1, *6 (E.D. Va. Mar. 20, 2013). By Memorandum Opinion and Order entered January 4, 2014, the Court dismissed Claims Three and Four and appointed counsel for Hill for further briefing on Claim One. Hill v. Clarke, No. 3:12CV174, 2014 WL 31496, at *5-6 (E.D. Va. Jan. 4, 2014). In his remaining claim, Hill argues entitlement to relief based upon the following:[1]

Claim One: "The Supreme Court of Virginia erred in finding that Hill was not in custody' for purposes of Miranda v. Arizona, 384 U.S. 436 (1966) and that the trial court properly denied his motion to suppress" amounting to a due process violation.[2] (Br. Supp. § 2254 Pet. 6 (emphasis added).)

Hill, by counsel, filed a supplemental brief and seeks to amend to add an additional claim. (ECF No. 26.) Respondent renews his Motion to Dismiss the § 2254 Petition, arguing that Claim One lacks merit. (ECF No. 27) Hill filed a reply. (ECF No. 28.) The matter is ripe for disposition. For the reasons discussed below, the Court finds that the Supreme Court of Virginia's determination that Hill was not in custody when he made his initial statement to police was an unreasonable application of clearly established federal law. Thus, Hill's initial statement should have been suppressed. Nevertheless, as explained below, the Court finds this error was harmless.

I. PROCEDURAL HISTORY

Following a bench trial, the Circuit Court convicted Hill of possession of a Schedule I or II controlled substance[3] with the intent to distribute, and sentenced him to ten years, with five years suspended. Commonwealth v. Hill, CR08-F-2419, at 1-2 (Va. Cir. Ct. Dec. 22, 2009). Hill appealed this decision to the Court of Appeals of Virginia, raising largely the same claims he advances in the instant § 2254 Petition. Petition for Appeal at ii, Hill v. Commonwealth, No. 0149-10-2 (Va. Ct. App. filed May 25, 2010). The Court of Appeals of Virginia denied the petition for appeal. Hill v. Commonwealth, No. 0149-10-2, at 1 (Va. Ct. App. July 21, 2010). Thereafter, a three judge panel of the Court of Appeals of Virginia also denied the petition. Hill v. Commonwealth, No. 0149-10-2, at 1 (Va. Ct. App. Sept. 22, 2010). Hill raised the same claims he advanced in the Court of Appeals of Virginia before the Supreme Court of Virginia. Petition for Appeal 3-4, Hill v. Commonwealth, No. 101955 (Va. filed Oct. 18, 2010). The Supreme Court of Virginia refused Hill's subsequent petition for appeal. Hill v. Commonwealth, No. 101955, at 1 (Va. Mar. 15, 2011).

Hill filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. See Petition for Writ of Habeas Corpus 1, Hill v. Dir. Dep't of Corr., No. 111860 (Va. filed Oct. 24, 2011). The Supreme Court of Virginia dismissed the petition, finding all of the claims barred by the rule of Henry v. Warden, Riverside Reg'l Jail, 576 S.E.2d 495 (Va. 2003), [4] because the issues were raised or decided in the trial court or on direct appeal. Hill v. Dir. Dep't of Corr., No. 111860, at 1 (Va. Jan. 17, 2012).

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 relief by way of a writ of habeas corpus. Specifically, "[s]tate 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 of habeas 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 light of the evidence presented in the State court proceeding. 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)).

III. SUMMARY OF THE EVIDENCE

The Court of Appeals of Virginia aptly summarized the evidence leading to Hill's arrest as follows:

At 9:02 p.m. on January 26, 2008, Officer Black and his partner, Officer Custer, effected a traffic stop[5] of a car in which the appellant was a passenger. The location of the stop was a high-crime area. Black smelled the odor of marijuana emanating from the car, so he and Custer had the driver and appellant exit the car. Black detained and handcuffed the driver, and Custer detained and handcuffed appellant. The officers had both men wait at the rear of their car. Detective Phillips arrived shortly after the men were handcuffed. Black and Custer advised Phillips they detected the odor of marijuana.
Phillips had a partner with him, but the partner, Detective Marsh, remained in Phillips' police car and never exited or got involved. Phillips approached appellant and detected a strong odor of marijuana on his person. During a weapons pat down, Phillips felt a small round lump inside appellant's pants near his inside thigh and asked appellant what it was. Appellant said it was a little bag of "hard, " which is slang for crack cocaine.[6] Phillips then asked appellant if he (appellant) could retrieve it, which appellant did. The bag appellant removed from his pants contained two plastic baggies, one with a piece of suspected crack cocaine and the other contained suspected marijuana. Fifteen minutes after the traffic stop was initiated, Phillips advised appellant of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

Hill v. Commonwealth, No. 0149-10-2, at 2 (Va. Ct. App. July 21, 2010).

After waiving his Miranda rights,

appellant admitted selling crack cocaine and told [Detective] Phillips "[h]e has never used crack." Appellant said he only sells to "[fein]s, " slang for addicted users, and stated he did so to make money for his family.[7] There was no evidence the police found paraphernalia with which to personally consume the crack cocaine.
....
In addition to appellant's admission that he sold crack cocaine and his denial that he consumed it, the police found crack cocaine hidden on appellant's person, and they did not recover any pipes or other paraphernalia suggestive of personal use. That evidence sufficiently corroborated appellant's incriminating admission. Accordingly, the trial court did not err in finding sufficient competent and credible evidence to prove appellant's guilt beyond a reasonable doubt.

Id. at 4-5 (second alteration in original).

IV. MOTION TO SUPPRESS

A. Hill Was in Custody for Purposes of Miranda

In Claim One, Hill contends that the Supreme Court of Virginia erred in finding the Circuit Court properly denied Hill's motion to suppress and finding Hill "was not in custody' for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), " with respect to Hill's initial statement. (Br. Supp. § 2254 Pet. 6 (emphasis added).) Hill claims that because the officers smelled marijuana, required Hill to step out of the car, placed Hill in handcuffs, and then asked him about the lump in his pants, "a reasonable person in his position would believe he or she was indeed in custody." ( Id. at 7.) Hill argues that when he made the statement "it was just a little bag of hard, '" he "was in custody." ( Id. at 8.) Thus, he ...


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