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Ross v. Director, Department of Corrections

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

April 24, 2015

Jeremy Joseph Ross, Petitioner,
v.
Director, Department of Corrections, Respondent.

MEMORANDUM OPINION

CLAUDE M. HILTON, District Judge.

Jeremy Joseph Ross, Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of being a violent felon in possession of a firearm entered in the Circuit Court of the City of Virginia Beach. On December 10, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7(K), and he has filed no reply. For the reasons that follow, respondent's Motion to Dismiss will be granted, and this petition will be dismissed with prejudice.

I. Background

On January 18, 2012, following a bench trial, petitioner was found guilty of a single count of possession of a firearm by a violent convicted felon, in violation of Va. Code § 18.2-308.2. Case No. CR11-2577. The facts underlying the conviction were described by the Court of Appeals of Virginia as follow:

While on patrol near the Wayside Motor Inn in Virginia Beach on the night of May 4, 2011, Officer Shaun Lindemeyer saw a minivan with occupants inside parked near the motel office. The officer ran the tag' of the vehicle and learned that it was not assigned to the minivan. Suspecting that the car might be stolen, the officer approached the vehicle. Appellant was in the driver's seat, and Marsha Turner was the front seat passenger. Lindemeyer testified that Dominique Whitfield-Harris and her three children occupied the back seat.
Turner told Lindemeyer that the vehicle belonged to her stepfather. Lindemeyer saw that the glove box of the vehicle was closed. Turner and Whitfield-Harris produced identification in response to Lindemeyer's request. Appellant said he had no identification, then supplied the police with a false name and social security number. While he conversed with Lindemeyer, appellant appeared nervous and was crouched forward in his seat. Lindemeyer returned to his police vehicle to enter into the computer the identifying information appellant had provided.

In the meantime, Officer Terrence Schultz, who had arrived on the scene, was standing at the right rear corner of the minivan. Schultz saw appellant lean to his left and stretch his left arm toward the passenger side of the car. As Schultz walked toward the front of the van, he saw appellant's hand moving away from the area of the glove box, which was open. Schultz then noticed the handle of a firearm on the front passenger side floor board of the vehicle underneath Turner's foot. Schultz alerted Lindemeyer of his observation, and the two officers ordered appellant to exit the minivan.

As soon as he exited the vehicle, appellant tried to flee. The officers struggled with appellant, and his shirt was torn off. Schultz used the taser to subdue appellant.
Turner testified that on May 4, 2011, she had been dating appellant intermittently for seven years. Turner stated that when she and appellant encountered the police that night, they had given appellant's friend Tyrone, Tyrone's girlfriend, and their children a ride to the motel. When the police officers stepped away from the vehicle, appellant pulled a gun out from behind his back and tried to put it in the glove box. The glove box would not close, however, and the weapon fell to the floor. Appellant told Turner to cover the gun with her feet. Turner stated she was afraid of appellant because he could be abusive. The police charged Turner with possessing a firearm after conviction of a felony. However, Turner had agreed to plead guilty to a charge of possessing a concealed weapon in return for her trial testimony.

Ross v. Commonwealth. R. No. 0630-12-1 (Va.App. Oct. 18, 2012), slip op. at 1-2; Resp. Ex. C. Following a hearing on April 4, 2012, petitioner was sentenced to five years incarceration followed by six months of post-release supervision. Resp. Ex. A.

Petitioner appealed the conviction to the Court of Appeals of Virginia, raising claims that: (1) the evidence was insufficient to sustain the conviction; and (2) he was denied the right to due process because he did not learn the name of the backseat passenger, Ms. Whitfield-Harris, until Officer Lindemeyer revealed it during his trial testimony. A single judge of the Court of Appeals affirmed the conviction on October 18, 2012, Ross v. Commonwealth, supra, and a three-judge panel denied a petition for further review on December 14, 2012. Resp. Ex. D. The Supreme Court of Virginia refused petitioner's petition for appeal on March 26, 2013. Ross v. Commonwealth. R. No. 120615 (Va. Sept. 27, 2012). On June 15, 2013, Ross filed a petition for a state writ of habeas corpus in the trial court, raising the following claims:

1. He received ineffective assistance when counsel failed to discover the name of the backseat passenger, Ms. Whitfield-Ross, who would have testified that she did not see [petitioner] with a gun in which [she] also told the police officer.'
2. He was denied effective assistance when counsel did not ask the police or discover the name of Ms. Whitfield-Harris in the police report.

Resp. Ex. E. The circuit court denied and dismissed the petition on the merits on September 13, 2013, Resp. Ex. H, and the Supreme Court of Virginia refused petitioner's appeal of that result on March 27, 2014. Ross ...


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