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Clark v. Clarke

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

January 28, 2015

KENNETH WAYNE CLARK, JR., Petitioner,
v.
HAROLD W. CLARKE, Respondent.

REPORT AND RECOMMENDATION

RODERICK C. YOUNG, Magistrate Judge.

Kenneth Wayne Clark, Jr., a Virginia inmate proceeding pro se, filed this petition for habeas corpus under 28 U.S.C. § 2254 (hereinafter "§ 2254 Petition, " ECF No. 1) challenging his conviction in the Circuit Court for the City of Portsmouth, Virginia (hereinafter "Circuit Court"). The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Clark argues entitlement to relief on the following grounds:[1]

Claim A(1): Counsel rendered ineffective assistance[2] by "fail[ing] to make inquiry into the Mirandizing of"[3] Clark, and thereby "fail[ing] to preserve the issue for appeal." (§ 2254 Pet. 6.) Claim A(2): Counsel rendered ineffective assistance by "fail[ing] to raise the defense of entrapment." (Id. at 7.)

Claim B: Counsel rendered ineffective assistance by "not conduct[ing] a meaningful challenge to the Commonwealth's case where the police failed to obtain an anticipatory warrant for the search and seizure...." (Mem. Supp. § 2254 Pet. 4.)

Claim C: Counsel rendered ineffective assistance by "not challenging the reliability and credibility of the confidential informant to support the probable cause to arrest" Clark. (Id. )

Respondent has moved to dismiss the action (ECF No. 9). For the reasons that follow, it is RECOMMENDED that the § 2254 Petition be DISMISSED because Clark's claims lack merit.

A. Factual and Procedural History

After a bench trial, the Circuit Court convicted Clark of possession with intent to distribute cocaine, second offense, and sentenced him to an active sentence of nine years and three months of incarceration. See Commonwealth v. Clark, No. CR10001560-01, at 1-4 (Va. Cir. Ct. Apr. 25, 2011). Clark appealed his convictions. The Court of Appeals of Virginia denied the petition for appeal. Clark v. Commonwealth, No. 0876-11-1, at 1-5 (Va. Ct. App. Nov. 22, 2011). The Supreme Court of Virginia refused Clark's subsequent petition for appeal. Clark v. Commonwealth, No. 112269, at 1 (Va. May 15, 2012).

Clark filed a petition for a writ of habeas corpus in the Supreme Court of Virginia raising claims similar to those he raises in the instant § 2254 Petition. Brief in Support and Memorandum in Support of Petition for Writ of Habeas Corpus at 4, Clark v. Dir. of Dep't of Corr., No. 122203 (Va. filed Dec. 26, 2012). Finding that Clark failed to demonstrate that counsel rendered ineffective assistance, the Supreme Court dismissed the petition. Clark v. Dir. of the Dep't of Corr., No. 122203, at 1-5 (Va. June 24, 2013).

B. Analysis

1. 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)).

2. Ineffective Assistance of Counsel

To demonstrate ineffective assistance of counsel, a convicted defendant must show, first, 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 of Strickland, the convicted defendant 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, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id at 697.

In Claim A(1), Clark argues that counsel rendered ineffective assistance by "fail[ing] to make inquiry into the Mirandizing of Clark, and thereby "fail[ing] to preserve the issue for appeal." (§ 2254 Pet. 6.) Clark argues that police never provided him with Miranda warnings "at the time of the arrest" or during their questioning of Clark "about drug activity in any specific area I may have knowledge of at the police station. (Mem. Supp. § 2254 Pet. 6.) Clark claims he informed counsel about this purported Miranda violation ...


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