United States District Court, E.D. Virginia, Alexandria Division
Timothy Clifton Evans, 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 convictions entered in the Circuit Court of the City of Chesapeake, Virginia. On November 2, 2015, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and exhibits. Dkt. Nos. 14, 15, 16. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he filed a response. Accordingly, the matter is now ripe for disposition. For the reasons that follow, petitioner's claims must be dismissed, and his pending motions will be denied.
Following a bench trial on December 8, 2011, the Circuit Court for the City of Chesapeake convicted petitioner of one count of possession with intent to distribute an imitation controlled substance, two counts of possession with intent to distribute a controlled substance, and three counts of driving with a revoked or suspended license. Case Nos. CR11-2594-01, -02, -03, -04, -05, -06, -07. On March 2, 2012, the circuit court sentenced petitioner to a total of 25 years and 180 days, with 16 years, 6 months, and 150 days suspended. Compl. at 1.
Petitioner appealed, and on October 3, 2012, the Virginia Court of Appeals granted the appeal with respect to whether the trial court erred in imposing an unlawful sentence on the possession with intent to distribute an imitation controlled substance charge and remanded the case to the trial court to determine whether there had been a clerical error in the sentencing order. Rec. No. 0498-12-1. After the trial court corrected the sentencing orders, the Virginia Court of Appeals dismissed the appeal on April 16, 2013. Id. Thereafter, the Supreme Court of Virginia refused petitioner's appeal. Rec. No. 130789.
The Virginia Court of Appeals' order dated October 3, 2012 and the record reflect the following facts:
Detective Hammond testified that in May of 2011 he received information from a confidential informant in reference to a person known as "T" who allegedly distributed heroin to the informant and someone at the informant's house. On May 14, 2011, Hammond met with the informant and had the informant call T using a speaker phone in Hammond's car and order a quantity of heroin. Hammond heard the conversation and said the informant asked for "a bundle" and T stated, "Okay. I'll be there shortly." Hammond searched the informant before and after the transaction and provided the informant with a two-way transmitter so the detective could communicate with the informant and hear any conversations between the informant and the seller. Hammond also videotaped the encounter. After giving the informant funds to purchase the drugs, Hammond had the informant sit on a porch and wait for T. Hammond waited nearby in his car in a position where he could maintain constant surveillance of the informant. A short time later, appellant arrived in a black car and the informant entered the car. Hammond followed the appellant as he drove the informant around the area and never lost sight of them. Hammond heard appellant tell the informant "he was trying to find his guy" and a phone call appellant made to someone "looking for a bundle [of heroin]." Hammond explained that a "bundle" consisted of eight capsules of heroin. After picking up the informant and making cell phone calls, appellant met with a man in a pickup truck, then drove the informant back to the informant's pick-up location where appellant said to the informant, "Here is ten caps" of heroin. Appellant drove away, and the informant entered Hammond's car and gave him the drugs. Test results established that the capsules informant purchased contained heroin.
Hammond met with the informant again on May 19, 2011, at the same location. The informant entered Hammond's car and placed a phone call using the speaker phone to the same number called on May 14th and asked for a bundle of heroin. The person speaking with the informant said, "Okay. I'll be there in a little while." Fifteen minutes later, appellant arrived and the informant, who Hammond earlier searched and provided funds, entered the car. A short time later, the informant exited the car, appellant drove from the area, and the informant gave the suspected drugs to Hammond. The items sent to the lab consisted often clear capsules containing off-white powder. Test results concluded the power was not a controlled substance.
On May 31, 2011, Hammond and the informant met in Hammond's car, and the informant called T on the speaker phone and asked for five capsules of heroin. T said, "Okay, " and they agreed to meet at a Food Lion store. Hammond searched the informant, provided him with funds, and drove the informant to the Food Lion. Appellant arrived in the same car a short time later. He had a female passenger in the front seat and a male in the rear seat. The informant entered the rear passenger seat of T's car, and Hammond saw the informant reach across the seat and hand appellant currency. Hammond also saw appellant hand the informant an object that tested positive for heroin.
Rec. No. 0498-12-1, Oct. 3, 2012 Order at 2-3.
On August 18, 2014, petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, which subsequently denied it on January 13, 2015. Rec. No. 141234. On April 29, 2015, petitioner timely filed the instant federal habeas petition raising the same claims he had raised in his state habeas petition:
I. Petitioner was denied due process under Brady v. Maryland. 373 U.S. 83 (1963) when the prosecution failed to disclose evidence favorable to him upon request.
a. The prosecution failed to disclose the identity of a confidential informant who was alleged to have played a role in the undercover "drug buy, " and whose participation formed the basis for the arrest and conviction of the petitioner.
b. The prosecution failed to disclose the audio and video surveillance evidence that formed the basis of the prosecutions sole witness' testimony and supported the conviction of the petitioner.
II. Petitioner was denied his right to effective assistance of counsel under the Sixth Amendment prior to and during his trial, and on direct appeal.
a. Defense counsel failed to compel the prosecution for disclosure of the identity of the confidential informant, a participant in the undercover "drug buy, " and whose role formed the basis for the arrest and conviction of petitioner.
b. Defense counsel failed to discover and investigate the existence of the alleged audio and video surveillance evidence that formed the basis of the prosecutions sole witness's testimony and supported the conviction of the petitioner.
c. Defense counsel failed to object to the admissibility of evidence that denied petitioner his Sixth Amendment right of confrontation to cross-examine a third party witness responsible for detailing conclusions of a certified drug analysis.
d. Defense counsel failed to object to the admissibility of the testimony of a prosecution witness not qualified as an expert in the sale, distribution, ...