United States District Court, E.D. Virginia, Alexandria Division
James C. Cacheris United States District Judge
Allen Terrell Farmer, 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 entered in the Circuit Court for the City of Alexandria, Virginia. On October 22, 2015, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and exhibits. Dkt. Nos. 8, 9, 10. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he filed no reply. Accordingly, the matter is now ripe for disposition. For the reasons that follow, petitioner's claims must be dismissed.
Petitioner is in respondent's custody pursuant to a judgment of the Circuit Court for the City of Alexandria entered on June 6, 2013, wherein he was convicted of possession with the intent to distribute cocaine. Case No. CR13000061. He was sentenced on July 18, 2013 to 15 years in prison, with 9 years suspended.
Petitioner appealed, and the Virginia Court of Appeals denied the appeal on March 13, 2014. That order was affirmed by a three-judge panel on May 30, 2014. Rec. No. 1455-13-4. Petitioner's subsequent petition for appeal to the Supreme Court of Virginia was refused on November 21, 2014. Rec. No. 141021.
The Virginia Court of Appeals' opinion dated March 13, 2014 and the record reflect the following facts:
Between May 2012 and August 2012 Detective John East investigated [petitioner], suspecting that he was a supplier of cocaine. On August 14, 2012, Detective East was involved in a controlled buy operation where he and other undercover detectives gave Fernando Payne prerecorded "buy money." Payne entered an apartment and returned with cocaine which he gave to Detective East. [Petitioner] exited the same apartment about thirty minutes after the controlled buy. [Petitioner] got onto a scooter, and officers executed a traffic stop. Officers found on [petitioner] the prerecorded buy money that undercover detectives had given to Payne, but no cocaine. [Petitioner] was arrested, and Detective East sought two arrest warrants against [petitioner]. In support of the warrants, Detective East told the magistrate the facts of August 14. Detective East also told the magistrate that he knew of numerous controlled purchases of cocaine from [petitioner], on a previous undercover purchase from Payne he had seen Payne meet with someone he believed to be [petitioner]; Payne's phone records show hundreds of phone calls between Payne and [petitioner]; and he had determined that [petitioner] was Payne's supplier of cocaine. The magistrate issued two warrants against [petitioner] on August 14, 2012 - one warrant for conspiracy to distribute cocaine and one warrant for possession with intent to distribute a schedule I or II substance. These warrants were nolle prosequied.
In October 2012, a cooperating witness came forward who was present in the apartment and observed the drug transaction between Payne and [petitioner] on August 14. Detective East interviewed this witness on two separate occasions. On December 7, 2012, Detective East appeared before the magistrate and described the new evidence he had obtained against [petitioner] since August 14, and told why he was seeking another warrant four months later. The magistrate issued an arrest warrant against [petitioner] for conspiracy to distribute cocaine. Detective East sent a lookout notice of the unserved arrest warrant for [petitioner] to other police officers via email.
On the morning of December 17, 2012, Officer Whelan saw a new warrants list on the computer that included the warrant for the arrest of [petitioner] issued on December 7. Officer Whelan had also seen the email concerning [petitioner] from Detective East. Later that day Officer Whelan passed [petitioner] while on patrol. After passing [petitioner], Officer Whelan typed [petitioner]'s last name into the computer system, which indicated the warrant for [petitioner] was still active. Officer Whelan then stopped and handcuffed [petitioner] based on the outstanding warrant. After detaining [petitioner], Officer Whelan called the police station dispatcher, who verified with "records" that there was still an active warrant for [petitioner]'s arrest. Officer Whelan then searched [petitioner] and found thirteen corner baggies of crack cocaine rocks and $225 in his pockets.
Officer Whelan obtained an arrest warrant from the magistrate charging [petitioner] with possession of a controlled substance with intent to sell or distribute on December 17, 2012, in violation of Code § 18.2-248. The grand jury issued a true bill with the same charge against [petitioner]. The warrant against [petitioner] for conspiracy to distribute cocaine issued on December 7, was ultimately nolle prosequied.
Rec. No. 1455-13-4, March 13, 2014 Order at 1-3.
Petitioner executed the instant federal habeas petition on May 22, 2015, and it was filed by this Court on June 10, 2015. In his petition, he raises the following allegations:
(1) Petitioner alleges that his Fourth Amendment rights were violated. Specifically, he alleges that the arresting officer's actions, relying upon the arrest warrant obtained by Detective East, were reckless to the point of bad faith because Detective East knew or should have known that the warrant was not supported by probable cause.
(2) Petitioner alleges that the evidence was insufficient to prove beyond a reasonable doubt that petitioner was guilty of possession with intent to distribute cocaine because there was a reasonable chance of innocence to negate ...