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Foster v. Ray

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

March 20, 2015

Tony Foster, Petitioner,
v.
Tracy S. Ray, Respondent.

MEMORANDUM OPINION

CLAUDE M. HILTON, District Judge.

Tony Foster, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of his conviction in the Circuit Court for the City of Hopewell, Virginia of second-degree murder, use of a firearm in the commission of a murder, arson, attempted robbery, and conspiracy to commit robbery. Respondent has filed a Motion to Dismiss and a Rule 5 Answer, accompanied by a supporting brief. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he has filed a response. For the reasons that follow, petitioner's claims must be dismissed.

I. Background

On November 9, 2004, a jury convicted petitioner of the above offenses in the Circuit Court for the City of Hopewell. Commonwealth v. Foster, Case Nos. CR03000404-00-CR03000406-00; CR0400349-00-CR04000350-00. On February 9, 2005, he was sentenced to a total of forty-five years' incarceration. Petitioner pursued a direct appeal to the Court of Appeals of Virginia alleging that (1) the trial court erred in not permitting him to view notes from an investigating detective; (2) the trial court erred indenying his Motion to Strike the Evidence; and (3) the trial court erred in denying his Motion to Set A side the Verdict. The Court of Appeals affirmed petitioner's conviction in a per curiam opinion on November 16, 2005, and a three-judge panel denied a petition for rehearing on January 27, 2006. Foster v. Commonwealth, R. No. 0460-05-2. On July 6, 2006, the Supreme Court of Virginia refused petitioner's petition for appeal. Foster v. Commonwealth, R. No. 060332.

On July 27, 2007, petitioner filed a petition for writ of habeas corpus in the Circuit Court for the City of Hopewell, [1] alleging that (1) counsel was ineffective for failing to object to the trial court's decision to not allow the jury to review trial transcripts during deliberations; (2) counsel was ineffective for failing to elicit prior inconsistent statements of the Commonwealth's key witness; (3) counsel was ineffective for not arguing that the evidence was insufficient to sustain petitioner's charges; and (4) the Commonwealth knowingly admitted perjured testimony. The court dismissed the petition on May 27, 2010. Foster v. Warden. Sussex I State Prison, Case No. CL2007-252. Petitioner appealed to the Supreme Court of Virginia, which refused the appeal on March 22, 2011. Foster v. Warden. Sussex I State Prison, R. No. 101838.

On March 27, 2011, petitioner filed the instant federal habeas petition[2] in the United States District Court for the Western District of Virginia, arguing that (1) counsel was ineffective for failing to ask that the jury be permitted to review trial transcripts; (2) counsel was ineffective for failing to elicit prior inconsistent statements of the Commonwealth's witness; (3) counsel was ineffective for failing to present evidence tending to show that petitioner did not commit the charged crimes;[3] and (4) the Commonwealth knowing admitted perjured testimony. The case was transferred to this Court by Order dated April 5, 2011; however, due to an unknown clerical error, this Court did not receive the petition until June 2, 2014. On August 7, 2014, respondent filed a Motion to Dismiss petitioner's claims. Petitioner filed a response on September 3, 2014. Based on the pleadings and record before this Court, it appears that petitioner has exhaustedall of his claims as required under 28 U.S.C. § 2254. Accordingly, this matter is now ripe for review on the merits.

II. Standard of Review

When a state court has addressed the merits of a claim raised in a federal habeas corpus petition, a federal court may not grant the petition on that particular claim unless the state court's adjudication was contrary to, or an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts presentment the trial. 28 U.S.C. § 2254(d)(l)-(2). Thee valuation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based on an independent review of each standard. See Williams v. Tavlor, 529 U.S. 362, 412-13 (2000). A state court determination violates the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on aquestion of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Id. at 413. When reviewing the state court's findings, the federal court is limited to the record before the state court at the time of the decision. See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011).

Under the "unreasonable application" clause, the writ should be granted if the federal court finds that the state court "identifies the correct governing legal principle from [the United States Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. Importantly, this standard of reason ableness is an objective one, and does not allow a federal court to review simply for plain error. Id. at 409-10; see also Lockver v. Andrade, 538 U.S. 63, 75 (2003). "[S]o long as fairminded jurists could disagree on the correctness of [a] state court's decision, ' a state court's adjudication that a habeas claimfails on its merits cannot be overturned by a federal court." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvorada, 541 U.S. 652, 664 (2004)). In addition, a federal court should review the state court determinations with deference; the court cannot grant the writ simply because it concludes, based on its own analysis, that the state court incorrectly determined the legal standard. See Wood ford v. Visciotti, 537 U.S. 19, 24-25 (2002) (internal citations omitted). A federal court reviewing a habeas petition "presumefs] the [state] court's factual findings to be sound unless [petitioner] rebuts the presumption of correctness by clear and convincing evidence.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. 2254(e)(1)); see, e.g., Lenz v. Washington, 444 F.3d 295, 300-01 (4th Cir. 2006).

III. Analysis

Claim A

In Claim A, petitioner argues that he received ineffective assistance of trial counsel when his attorney failed to ensure that the jury reviewed trial transcripts and failed to ensure that the jury had an answer to its question about the timing of the response to the arson. During deliberations in the guilt phase of petitioner's trial, the jury sent out a note asking what time authorities responded to the fire, and also requesting to review transcripts of trial testimony. The trial judge informed the jurors that they should use their independent recollection of the trial testimony to answer their question about the fire, and informed them that they would not be provided with transcripts. The judge asked petitioner's counsel if he had any objection to this answer, and counsel stated that he did not. See Trial Transcript ("Tr. Trans."), Commonwealth v. Foster (Nov. 8, 2004), at 199-201. Petitioner states that his counsel's failure to object to the judge's answer and failure to provide an answer to the jurors' question constituted ineffective assistance of Counsel. He states that the jury's question and request for transcripts showed that "it was obvious that the jury couldn't remember the whole trial, because if they [sic] did, then they [sic] wouldn't have asked to see trial transcript and what time was the fire responded too [sic]." Pet. Att. A, at 1. He argues that, as are sult, the jury could not render a "fair judgment." Id. at 3.

The Circuit Court for the City of Hopewell, considering petitioner's argument in his state petition for a writ of habeas corpus, rejected this claim on the merits. Specifically, the court found that petitioner could not meet standard for ineffective assistance of counsel articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Foster v. Warden, slip op. ¶¶ 8-9. This decision was not contrary to, or an unreasonable application of, clearly established federal law, nor was it an unreasonable application of the facts.

The established federal law governing ineffective assistance of counsel claims is the two-pronged test set out in Strickland, 466 U.S. 668. Under this test, petitioner must prove both that his attorney's performance was so deficient "that counsel was not functioning as the counsel' guaranteed by the Sixth Amendment, "and that this performance prejudiced the outcome of petitioner's trial. Id. at 687. To prove prejudice, petitioner must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A federal habeas court reviewing a claim of ineffective assistance of counsel must presume that counsel acted competently, and should determine the merits of the claim based on the information available to the attorney at the time of the trial. See, e.g., Bell v. Cone, 535 U.S. 685, 701-02 (2002); Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000). In addition, as deficient ...


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