United States District Court, W.D. Virginia, Roanoke Division
RONALD F. CROMARTIE, JR., Petitioner,
DIRECTOR, DEPARTMENT OF CORRECTIONS, Respondent.
GLEN E. CONRAD, District Judge.
Petitioner, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner challenges the validity of his confinement for his 2005 conviction in Lynchburg City Circuit Court for possession with the intent to distribute cocaine, second offense. Upon review of the record, the court grants respondent's motion to dismiss the petition as procedurally barred and without merit.
Lynchburg Police Officers Brandon Clark and Joshua Campbell were on patrol in their police cruiser on the evening of May 20, 2011, stopped at a red light, when they saw a black Dodge Durango come through the intersection in front of them. The officers, who had undergone special training in visually estimating speed, deduced that the Durango was going approximately 35 miles per hour in a zone with a posted limit of 25 miles per hour. The officers followed and attempted to catch up to the Durango, as it made a series of sharp turns and continued to accelerate above the speed limit, in their estimation. Clark also saw the Durango cross over the white line divider between the driving lane and the shoulder of the road at one point. As the police vehicle drew up close behind it, the Durango slowed to within the posted limit and turned onto Garfield Avenue. At that point, the officers triggered their lights to signal the Durango to pull over, which it did.
Clark approached the Durango, and at his request, the driver, Ronald F. Cromartie, Jr., provided driver's license and registration. Clark told Cromartie that the officers had observed him speeding and crossing lane markers. Cromartie said he had missed a turn, was running late, and was not paying attention. Clark called Cromartie's information in to dispatch, using his shoulder microphone. Then, after waiting a few minutes for Cromartie to finish a cell phone call, Clark asked him to step out of the vehicle, which he did. Clark said that police had received a tip about a black Dodge Durango transporting narcotics in the Garfield Avenue area and asked if he could search the vehicle. Cromartie became defensive and asked what probable cause the officers had for a search. He refused to consent to a search, saying that it would be embarrassing in front of his family. Some onlookers had gathered around the scene. Clark told Cromartie that he could get back in his vehicle until Clark returned. Back at the police cruiser, Clark called for a narcotics canine unit to report to the scene. He then realized that he had not asked for insurance information, returned to the Durango, and asked Cromartie for proof of insurance. Cromartie began searching through papers in the glove box, but could not locate his insurance documentation.
During this time, the canine unit arrived. Clark asked Cromartie to step out of his vehicle so that officers could run the canine around it. Cromartie remained in the Durango and asked what probable cause the officers had to use the dog on his vehicle. Clark explained that no probable cause was necessary for use of a canine and that a canine alert on the vehicle would give the officers probable cause for a search. Clark asked Cromartie again and again to exit the vehicle, but Cromartie, who was exhibiting signs of increasing nervousness, failed to comply. Clark warned that if he did not get out of the vehicle, the officers would pull him out and handcuff him. Cromartie began asking why the officers were doing this to him and begged them to stop touching their guns, which they were not doing. Clark grasped Cromartie's arm to escort him out of the vehicle, but Cromartie jerked away and turned the key in the ignition. An altercation ensued between Cromartie and the officers, who struggled to keep Cromartie from fleeing the scene and from retrieving what they believed might be a firearm out of the center console. Instead, Cromartie grabbed a plastic bag from the console, and out fell a baggie containing a substance that later testing confirmed to be cocaine. In the course of the struggle, an officer used a taser on Cromartie, and another drew his firearm.
Ultimately, the officers extricated Cromartie from the vehicle and placed him under arrest. Authorities also obtained a search warrant for Cromartie's residence, where they found additional cocaine and cash.
Based on these incidents, Cromartie faced felony charges for possession of cocaine with the intent to distribute and obstruction of justice and two misdemeanor charges for resisting arrest and reckless driving. These charges came before Judge Stephen H. Helvin of the Lynchburg General District Court on July 7, 2011, for a preliminary hearing on the felonies and a trial on the misdemeanors. The officers testified about their participation in the traffic stop as herein described. Defense counsel moved to suppress the evidence. He argued that the officers had violated Cromartie's Fourth Amendment rights by stopping his vehicle without probable cause to believe that he was speeding. Judge Helvin asked the parties to present him with authority on this suppression issue, which they did. On July 14, 2011, Judge Helvin heard arguments from counsel and then announced his ruling that the officers had no probable cause for the traffic stop. He granted the motion to suppress the evidence as to the misdemeanor charges, which were dismissed.
Thereafter, based on the same evidence, a grand jury returned felony indictments charging Cromartie with two counts of possession of cocaine with intent to distribute, later amended to second offense, and one count of obstruction of justice. Defense counsel again moved to suppress the evidence. Circuit Court Judge F. Patrick Yeatts conducted a second suppression hearing on October 28, 2011. Both officers testified, and the prosecution played the dashboard camera recording of the traffic stop. A timer on the recording indicated that approximately 12 minutes passed from the initial stop until the officers had Cromartie out of the car and on the ground in handcuffs. In arguing for suppression, defense counsel emphasized the lack of probable cause for the initial stop, as Judge Helvin had ruled. Among other things, he contended that the officers' abandonment of normal traffic stop activities to search for drugs indicated an ulterior drug investigation motive that damaged the credibility of their visual estimate of Cromartie's speed, and that the officers had no probable cause to search Cromartie's vehicle.
Judge Yeatts denied the motion to suppress, however, finding that, viewed objectively, the specially trained officers' visual estimate of Cromartie's speed provided probable cause to pull Cromartie over for speeding under Virginia law, regardless of any ulterior motive they may have had. Judge Yeatts also found that the officers did not exceed the scope of that stop in asking Cromartie to step out of the vehicle or by preparing to run the narcotics canine around his vehicle, while still in the process of obtaining information relevant to the traffic stop. The Virginia case on which the Court primarily relied in reaching this conclusion applied United States Supreme Court precedent to facts similar to Cromartie's case. See Thomas v. Commonwealth, 701 S.E.2d 87 (Va.App. 2010) (recognizing that stopping vehicle for crossing a lane divider was lawful and officers did not exceed the scope of that stop by asking driver to exit vehicle or by walking drug-sniffing dog around it) (citing Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (holding that Fourth Amendment analysis required court to make "an objective assessment of the officer's actions in light of the facts and circumstances confronting [them] at the time, and not on the officer's actual state of mind at the time the challenged action was taken") (internal quotations and citation omitted); Whren v. United States, 517 U.S. 806, 813 (1996) (finding that officer's "ulterior motive" does not nullify an objectively valid "legal justification" for his actions); Arizona v. Johnson, 555 U.S. 323, 333 (2009) (holding that officer may lawfully inquire about matters unrelated to the justification for traffic stop if such actions "do not measurably extend the duration of the stop")).
Thereafter, Cromartie pleaded guilty in the circuit court, pursuant to a plea agreement, to one count of possession with the intent to distribute cocaine, second offense. (CR110022845-00-01.) As part of the agreement, the Commonwealth nolle prossed the two related felony charges. On October 31, 2011, pursuant to the terms of the plea agreement, the Court sentenced Cromartie to 30 years in prison, with 20 years suspended. He did not appeal.
On October 30, 2012, Cromartie filed a petition for a writ of habeas corpus in the circuit court, alleging that: (1) defense counsel was ineffective in failing to suppress evidence that was illegally gathered in a "violent manner"; (2) the prosecution engaged in "egregious and unethical behavior" which "undermined the impartiality [petitioner] received at trial"; (3) the trial court violated petitioner's right against double jeopardy by denying his motion to dismiss; (4) counsel was ineffective in failing to file an interlocutory appeal of the trial court's denial of the motion to dismiss; (5) use of "false testimony" and "tampered evidence" violated petitioner's right to a fair trial; (6) counsel was ineffective in failing to "disclose evidence to the petitioner, " resulting in petitioner's making "unintelligent, unknowing and involuntary decisions" regarding his plea; (7) counsel was ineffective for failing to conduct a reasonable investigation; (8) counsel was ineffective for failing to allow the petitioner to testify during the hearing on the motion to suppress; (9) counsel's ineffectiveness "forced [petitioner] into accepting a plea bargain"; (10) the prosecution erroneously calculated petitioner's guidelines using an incorrect drug amount; and (11) counsel was ineffective in failing to properly advise and assist petitioner in seeking post-conviction relief. The circuit court denied Cromartie's habeas petition by order dated July 29, 2013.
Cromartie appealed, raising the following argument:
THE CIRCUIT COURT ERRED WHEN IT FAILED TO TAKE NOTICE OF AND DENIED [PETITIONER] HABEAS RELIEF ON HIS RAISED CLAIM THAT COUNSEL 1) FAILED TO COMPETENTLY LITIGATE AN ISSUE UNDER THE FOURTH AMENDMENT IN THE SUPPRESSION HEARING, AND 2) DEMONSTRATED A CUMULATIVE PATTERN OF INEFFECTIVE ASSISTANCE; THUS, CONCLUDING THAT COUNSEL'S REPRESENTATION DID NOT FALL BELOW THE STANDARDS OF REASONABLENESS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND [PETITIONER] WAS NOT DEPRIVED OF HIS RIGHT TO EFFECTIVE COUNSEL.
(Habeas App. Pet. 2, ECF No. 2-1.) By order dated March 25, 2014, the Supreme Court of Virginia found "no reversible error in the judgment complained of, " and denied Cromartie's habeas appeal: (Record No. 131488.)
In his federal habeas petition, Cromartie raises two claims of ineffective assistance of counsel, each with multiple subparts:
Ground One: Trial counsel was ineffective in failing "to competently litigate an issue under the 4th Amendment" by: (1) failing "to make an adequate investigation into potential legal defenses due to the facts developed by the case"; (2) failing "to make a Terry challenge or educate the court by presenting authorities that petitioner's 4th Amendment rights" were violated; (3) failing "to challenge the government's use of a tip justifying police officer's decision to exceed the scope of seizure"; and (4) "conduct[ing] extremely poor cross-examination which left important facts concerning the traffic stop incident inconclusive."
Ground Two: Trial "counsel demonstrated a cumulative pattern of ineffective assistance" by (1) "erroneously advis[ing] that the doctrine of collateral estoppel was dispositive on barring the Commonwealth from prosecuting the indictment against petitioner"; (2) "advising petitioner that the denial of the defense motion to dismiss could not be challenged"; (3) failing "to reasonably advise petitioner of potential affirmative legal defenses to be used at suppression hearing or at trial"; (4) "depriving petitioner of his right to testify... at the suppression ...