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Hardy v. Director, Dep't of Corrections

United States District Court, E.D. Virginia

April 22, 2015

Lionel Leo Hardy, Petitioner,
v.
Director, Dep't of Corrections, Respondent.

MEMORANDUM OPINION

ANTHONY J. TRENGA, District Judge.

Lionel Leo Hardy, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254, challenging the constitutionality of his conviction of distribution of cocaine in the Circuit Court of Nottoway County. On November 25, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits.[1] Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and he has filed no reply. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.

I. Background

On March 14, 2011, petitioner was convicted of distribution of cocaine. The facts underlying the conviction were described by the Court of Appeals of Virginia as follow:

On September 28, 2009, [a confidential informant named] Carpenter agreed to make an undercover drug purchase targeting appellant's twin brother. Police officers met Carpenter behind a flea market in Crewe. Carpenter's girlfriend was with him. The officers searched Carpenter and his vehicle. The police hid an audio recording device in Carpenter's vehicle, under the seat. They also gave Carpenter a cell phone and twenty dollars to purchase drugs.
Carpenter stopped his vehicle at a location in Blackstone. Carpenter used a pay telephone to call appellant's brother. Carpenter said he needed a "dub, " meaning a twenty-dollar rock of cocaine. Carpenter arranged to meet appellant's brother at his grandfather's residence on Doswell Street. Carpenter then used the cell phone to call the police and advise them of the arrangement.
The police followed Carpenter's vehicle and remained in the vicinity after he arrived at the Doswell Street location. Appellant's brother approached Carpenter's car, and talked to him briefly about a mutual acquaintance. Carpenter then held twenty dollars out the car window and said "what's up." Appellant's brother nodded to appellant, who was standing behind the car. Four or five other men were near a white Cadillac parked nearby, and were unloading guns from the trunk. Appellant took the money from Carpenter and handed him a piece of cocaine. Someone fired a gun in the air ten to twelve times as Carpenter drove away from the scene.
The police met Carpenter at the Crewe flea market. Carpenter gave the police the cocaine he had purchased from appellant.

Hardy v. Commonwealth, R. No. 0619-11-2 (Va.App. Oct. 6, 2011), slip op. at 1-2, footnotes omitted. Petitioner received a sentence of fifteen (15) years imprisonment. Case No. CR10000079-00.

Petitioner appealed his conviction to the Court of Appeals of Virginia, arguing that: (1) the evidence was insufficient to sustain the conviction, and (2) the trial court erred in denying a motion to set aside the verdict where the Commonwealth withheld evidence that could have been used for impeachment. The Court of Appeals denied the petition for appeal on October 6, 2011, and the Supreme Court of Virginia refused a subsequent petition for appeal on the merits. Hardy v. Commonwealth, R. No. 121764 (Va. Apr. 16, 2013).

On April 15, 2014, petitioner filed a petition for a writ of habeas in the Supreme Court of Virginia, raising the following claims:

(A)(1): Counsel was ineffective because he failed adequately to research the admissibility of the certificate of analysis.
(A)(2): Counsel was ineffective because he failed to call the technician who conducted the ...

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