United States District Court, E.D. Virginia, Alexandria Division
January 27, 2015
Mushaune X. Stevenson, Petitioner,
Warden Carl Manis, Respondent.
T.S. ELLIS, III, District Judge.
Mushaune X. Stevenson, a Virginia inmateproceeding pro se, has filed a petition for a writ ofhabeas corpus pursuant to 28 U.S.C. § 2254, challengingthe constitutionalityof his conviction ofdrug offenses entered on a plea ofguilty in the Circuit Court for the City of Richmond. On June 5, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunityto file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and after receiving an extension oftime petitioner submitted a Rebuttal to Motion to Dismiss on July 15, 2014. For the reasons that follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed with prejudice.
At a hearing on February 22, 2011, petitioner entered a negotiated plea of guilty to one count ofdistribution ofcocaine and two counts ofpossession ofheroin with intent to distribute. Four additional drug charges were nolleprosequi, T. 2/22/11 at 13, and it also was agreed that petitioner would not be prosecuted for an outstandingprobation violation. Id. at 14. Petitioner received an aggregate sentence of thirty(30)yearsin prison withtwenty-one (21) years suspended. Id. at 11-12. Finaljudgment was entered on May 26, 2011.
On February22, 2011, the same day he entered his guilty plea, petitioner filed a motion to modify his sentence pursuant to Va.Code § 19.2-303, as well as a motionto stayhis transportation to the VirginiaDepartment ofCorrections ("VDOC"). Pursuantto § 19.2-303, a Virginia trial court retainsjurisdiction in a felony criminal case so long as the defendant has not been transported to VDOC. Neelv v. Commonwealth, 44 Va.App. 239, 243-44, 604 S.E.2d 733, 735 (2004), aff'd, 271 Va. 1, 624 S.E.2d 657 (2006). Themotionwas denied on February 22, 2011. Petitioner filed additional motions to modifyhis sentence pursuant to § 19.2-303and to stay his transportation to VDOC on September 12, October 22, October 27, and December 31, 2011, all ofwhich were denied in an order entered January 24, 2012.
On June 26, 2012, petitioner filed a petition for a state writ ofhabeas corpus in the Supreme Court of Virginia,  raising thefollowing claims:
(a), (h) He was denied effective assistance ofcounsel because counsel coerced him to accept the plea agreement by advising him that the agreement for a nine-year sentence was the best he could negotiate and that petitioner's failure to accept would resuh in his prosecution by federal authorities.
(b), (c), (d) He was denied effective assistance ofcounsel because counsel failed to file a suppression motion to challenge the reliability and veracity of the confidential informant.
(e), (f), (g) He was deniedeffectiveassistanceofcounsel because counsel did not think he would prevail at trial, even though the video recordings of the transactions did not clearly show petitioner selling drugs and the police found no drugs or money when they arrested him.
The Virginia Supreme Court found no merit to any ofthese argumentsand dismissed the petition on January 15, 2013. Stevenson v. Warden. Green Rock Corr. Center, R. No. 121167 (Va. Jan. 15, 2013).
Petitioner then turned to the federal forum and filed this application for relief pursuant to 28 U.S.C. § 2254 in the District Court for the Western District of Virginia on April 16, 2013. See Pet. at 10. An order directing that the action be transferred to the Eastern District of Virginia, the jurisdiction where the conviction was entered, was signed on July 1, 2013, but for reasons which are not apparent, the case was not actually transferred until May 5, 2013. Dkt. 3-4. As noted above, respondent has filed a Rule 5 Answer and a Motion to Dismiss the petition, and petitioner has filed a reply. Accordingly, this matter is now ripe for disposition. For the reasons which follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed with prejudice.
A petition for a writ ofhabeas corpus must be dismissed if filed later than one year after (1) the judgment becomes final; (2) any state-createdimpedimentto filing a petition is removed; (3) the United States Supreme Court recognizes the constitutional right asserted; or (4) the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(l)(A)-(D). Here, petitionerwas convicted on May 26, 2011. Since he took no direct appeal, theconviction became final onJune 27, 2011,  andthelimitations clock began to run.
The AEDPA's one-yearone-year statute of limitations is statutorily tolled during the pendency of any "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim." See 28 U.S.C. § 2244(d)(2). In Wall v. Kholi, ___ U.S. ___, 131 S.Ct. 1278 (2011), the Supreme Court held "that the phrase collateral review' in § 2244(d)(2) meansjudicial review ofa judgment in a proceeding that is not part of the direct review, " id. at 1282, and determined that a motion to reduce sentence under Rhode Island law was not part of the direct review process and therefore tolled the AEDPA limitations period. Here, as noted above, petitioner filed several motions to modifyhis sentence commencing on February 22, 2011, which collectively were denied in an order entered on January 24, 2012. Because these motions were not part of the direct review process, they qualified as "application[s] for... collateral review" under § 2244(d)(2), and acted to toll the AEDPA limitations period. See Mixson v. Warden, 2011 WL 4578346 at *2 N. 3 (W.D.Va. Sept. 30, 2011) (holding that a Virginia inmate's motion to vacate or modify his sentence qualified for statutory tolling); Speller v. Johnson, 2012 WL 1038624 (E.D.Va. Mar, 27, 2012) (same). Here, then, the limitations period was tolled from June 27, 2011 until January 24, 2012.
From January 24, 2012 until June 26, 2012, the date petitioner filed his application for habeas corpus relief in the Supreme Court ofVirginia, 152days passed. From January 5, 2013, the date the SupremeCurt ofVirginiadismissed the state habeas corpus petition, until April 16, 2013, the date petitioner filed this federal action, an additional 100 days passed. When these periods are combined they establish that the instant petition was filed within the one-year AEDPA limitations period, and is timely.
II. Merits Standard of Review
When a state court has addressed the merits ofa claim raised in a federal habeas petition, a federal court maynot grantthe petitionbasedon the claimunlessthe state court's adjudication is contrary to, or an unreasonableapplication of, clearly established federal law, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Whether a state court decision is "contrary to" or "an unreasonable application of federal law requires an independent review of each standard. See Williams v. Tavlor, 529 U.S. 362, 412-13 (2000). A state court determination runs afoul of the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or ifthe state court decides a case differently than [the United States Supreme] Court has on a set ofmaterially indistinguishable facts." Id. at 413. Under the "unreasonable application" clause, the writ should be granted ifthe federal court finds that the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . Importantly, this standard ofreasonableness is an objective one. Id. at 410. Under this standard, "[t]he focus of federal court review is now on the state court decision that previously addressed the claims rather than the petitioner's free-standingclaims themselves." McLee v. Aneelone, 967 F.Supp. 152, 156 (E.D. Va. 19971, appeal dismissed, 139 F.3d 891 (4th Cir. 1998) (table).
Petitioner makes the following claims in this federal petition:
1. He was denied his Sixth Amendment right to effective assistance of counsel and his Fifth and Fourteenth Amendment rights to due process at his trial. Specifically, petitioner alleges that counsel coerced him into pleading guilty and failed to move to suppress information supplied by a confidential informant. Pet. Memo, at 3-4.
2. He was denied his Sixth Amendment right to effective assistance of counsel and his Fifth and Fourteenth Amendment rights to due process on appeal. Specifically, petitioner alleges that counsel disregarded petitioner's stated desire to pursue a direct appeal. Pet. Memo, at 4-5.
3. Counsel's use of coercion and "scare tactics" amounted to ineffective assistance and rendered petitioner's plea ofguilty involuntary. Pet. Memo, at 6-7.
To establish ineffective assistance ofcounsel, a petitioner must show that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defendant." Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove that counsel's performance was deficient, a petitioner must show that "counsel's representationfell below an objective standard ofreasonableness" id. at 688, and that the "acts and omissions" ofcounsel were, in light of all the circumstances, "outside the range ofprofessionally competent assistance." Id. at 690. Such a determination "must be highly deferential, " with a "strong presumption that counsel's conduct falls within the wide range ofreasonable professionalassistance." Id. at 689. To satisfy Strickland's prejudice prong, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id .; accord. Lovitt v. True, 403 F.3d 171, 181 (4th Cir. 2005). The burden is on the petitioner to establish not merelythat counsel's errors created the possibility of prejudice, but rather "that they worked to his actual and substantial disadvantage, infecting his entire trial with errors ofconstitutional dimension." Murray v. Carrier. 477 U.S. 478, 494 (1986) (citations omitted, emphasis original). The two prongs of the Strickland test are "separate and distinct elements ofan ineffective assistance claim, " and a successful petitioner "must show both deficient performance and prejudice." Spencer, 18 F.3d at 233.
The Strickland test also "applies to challenges to guilty pleas based on ineffective assistance ofcounsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). With regard to the "prejudice" prong in the context ofa guiltyplea, a petitionermust show that, "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59; see also Burket v. Aneelone, 208 F.3d 172, 190 (4th Cir. 2000). In reviewing a petitioners claim of ineffective assistance of counsel regarding a guilty plea, "the representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings." Blackledee v. Allison, 431 U.S. 63, 73-74 (1977). Declarationsmade "in open court carry a strong presumption ofveracity, " and "the subsequent presentation ofconclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Id. at 74. Thus, absent clear and convincing evidence to the contrary, a defendant is bound by his representations at a plea colloquy concerning the voluntariness of the plea and the adequacy ofhis representation. Beck v. Aneelone, 261 F.3d 377, 396 (4th Cir. 2001).
In his first claim, petitioner argues that his counsel provided ineffective assistance by failing to file a motion to suppress information supplied by a confidential informant and coercing petitioner to plead guilty using "scared tactics [sic]." Pet. Memo, at 2-3. When petitioner raised these same allegations in his state habeas corpus application, the Supreme Court of Virginia rejected them on the following holdings:
In claims (a) and (h), petitioner alleges he was denied the effective assistance of counsel because counsel coerced him to accept a plea agreement by advising petitioner that an agreement for a nine-year sentence was the best he could negotiate and that, ifpetitioner did not accept, he would be prosecuted by federal authorities.
The Court rejects claims (a) and (h) because petitioner failed to offer a valid reason why he should not be bound by his representation at trial that his guilty plea was voluntary and there is no evidence identified by petitioner that would support the contrary conclusion that the plea was involuntary.Andersonv. Warden.222 Va. 511, 516, 281 S.E.2d 885, 888 (1981).
In claims (b), (c) and (d), petitioner alleges he was denied the effective assistance of counsel because counsel failed to filea suppression motion to challenge the reliability of the confidential informant or to otherwise challenge the informant's veracity. Petitioner contends that, but for counsel's failure, he would not have accepted the Commonwealth's plea offer.
The Court rejects claims (b), (c) and (d) because petitioner failed to offer a valid reason why he should not be bound by his representation at trial that his counsel's performancewas adequateand that hisguilty plea was voluntary and there is no evidence identified by petitioner that would support the contrary conclusion that the plea was involuntary. Anderson, 222 Va. at 516, 281 S.E.2d at 888.
Stevenson v Warden, supra, slip op. at 1-2.
Review of the record reveals that the state court's foregoing holding represented a reasonable determination of the facts. At the plea colloquy, the following exchange occurred:
THE COURT: Have you had ample opportunity to discuss these matters with your attorneys?
THE DEFENDANT: Yes, sir.
THE COURT: Have you discussed with your attorneys any witnesses that you may have to testify on your behalf were these matters to proceed with the trial?
THE DEFENDANT: Yes, sir.
THE COURT: You understand that his case was scheduled for a trial before the bench today and that you would be giving up your rights to proceed on a trial by entering into this agreement?
THE DEFENDANT: Yes, sir.
THE COURT: Have you discussed with your attorneys your right to plead: Guilty, not guilty, or no contest to these charges?
THE DEFENDANT: Yes, sir.
THE COURT: After having that discussion, did you decide for yourselfthat the pleas ofguilty would be in your best interest because you, in fact, are guilty?
THE DEFENDANT: Yes, sir.
* * *
THE COURT: Has anyone made any threats or promises to you to enter the plea ofguilty to these charges?
THE DEFENDANT: No, sir.
THE COURT: Are you entering your pleas of guilty freely and voluntarily?
THE DEFENDANT: Yes, sir.
Resp.Ex. 2, T. 2/22/11 at 7-8.
As reflected in the foregoing transcript excerpt, petitioner acknowledged that he had ample opportunity to discuss and prepare the case with his attomey, that no one had made any threats or promises to coerce his plea of guilty, and that he was doing so freely and voluntarily because he believed it to be in his best interest. Petitioner has offered no clear and convincing evidence which would call into question these sworn declarations. Cf Beck, 261 F.3d at 396. Thus, the state court's conclusion that petitioner's statements foreclosed his ability to challenge counsel's performance in collateral proceedingswas in accord with applicable federal authority. Blackledee, 431 U.S. at 73-74. Under these circumstances, the first claim ofthis petition warrants no federal relief Williams, 529 U.S. at 412-13.
In his second claim, petitioner argues that he was denied his Sixth Amendment right to effective assistance ofcounsel and his Fifth and Fourteenth Amendment rights to due process on hisappeal. Specifically, heappears to contend that hisattomey disregarded his instruction to file a notice ofappeal, and instead told petitioner that he could not appeal because he pleaded guilty. Pet. Memo, at 5. This claim was not raised in the state forum, a circumstance which generally resuhs in the application ofa procedural bar to the federal claim. See Bassette v. Thompson, 915 F.2d 932 (4th Cir. 1990) (claim is unexhausted and no longer capable of exhaustion is defaulted for purposes of federal habeas review). Here, however, the general rule will not be applied, for two reasons. First, as respondent notes, review of the claim arguablymay be permitted under Martinez v. Rvan, 566 U.S. ___, 132 S.Ct. 1309 (2012). There, the Supreme Court held that where state law provides that a claim of ineffective assistance oftrial counsel must be presented in an initial-review collateral proceeding, such claims are not procedurally barred from federal review ifthere was no counsel or ineffective counsel at the initial-review collateral proceeding. And second, even if Martinez were deemed not to apply here, 28 U.S.C. § 2254(b)(2) now permits a federal court, in its discretion, to deny on the merits a habeas corpus claim despite the applicant's failure to exhaust available remedies in state court. Sm Swisher v. True. 325 F.3d 225, 232-33 (4th Cir.), cert. denied, 539 U.S. 971 (2003) (affirming district court's discretionary decision to elect to deny habeas corpus reliefon the merits pursuant to § 2254(b)(2), although claim was "clearly unexhausted"). Here, then, the Court will not further belabor the issue of exhaustion, and will consider petitioner's second claim on the merits.
At the plea colloquy, the following exchange occurred:
THE COURT: You've also given up your rights to appeal this case to a higher court or any court in an effort to have this decision modified or reduced?
THE DEFENDANT: Yes, sir.
Resp. Ex. 2, T. 2/22/11 at 8.
In addition, respondent has supplied the affidavit of petitioner's counsel, Charles L. Inch, Esquire, who attests that he "saw no factual circumstances which would have... raised a legitimate issue for an appeal, " and that he has "no recollection, and fmd[s] no evidence in the file, that Mr. Stevenson requested [him] to Appeal either orally or in writing." Resp. Ex. 2, ¶ ¶ 2, 4. It is also important to recall in this regardthat the plea agreementresulted in significant benefits to petitioner which would have been forfeited had petitioner successfullychallenged the plea on appeal. Under all of these circumstances, the recordappearsto belie petitioner's present contentionthat directedcounsel to file an appealon his behalf. Moreover, nothing in the record indicates that petitionerhad anyrealistic chance of beingacquitted on appeal, as petitioner acknowledged at the colloquy that he was, in fact, guilty of the charged offenses. Thus, petitioner has failed to establish "a reasonable probability that, but for counsel's [claimed] deficient failure to consult with him about an appeal, he would have timely appealed, " cf Hooper v. Garraehtv, 845 F.2d 471, 484 (4th Cir. 1998), and he is entitled to no relief on his second claim
In his third claim, petitioner reiterates his argument that he received ineffective assistance ofcounsel in connection with the plea agreement because counsel used "scare tactics" to coerce him into accepting it by predicting that otherwise he would face federal charges and would receive the maximum sentence based on his criminal history. These allegations do no more than reiterate the same argument raised in claim one, and must be rejected for the same reasons. To the extent that petitioner adds the statement that his guilty plea was not entered knowingly and voluntarily, that portion of the claim was never raised in the state forum. Because petitioner at this juncture is precluded from challenging the voluntariness of the plea before the Supreme Court of Virginia, that issue is deemed simultaneously exhausted and defaulted for purposes of federal habeas review. See Bassette v. Thompson, 915 F.2d 932 (4th Cir. 1990), cert. denied, 499 U.S. 982 (1991).
IV. Evidentiary Hearing Not Warranted
Inhis Rebuttal to Motionto Dismiss, petitioner requests an evidentiary hearing. However, it has been established by the Supreme Court that review ofa habeas corpus claim under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim. Cullen v. Pinholster, ___U.S. ___, 131 S.Ct. 1388 (April 4, 2011). Therefore, petitioner's request foran evidentiary hearing must bedenied.
For the foregoing reasons, respondent's Motion to Dismiss this petition must be granted, and the petition must bedismissed with prejudice. Petitioner's request for anevidentiary hearing must be denied. An appropriate Order shall issue.