Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Herring v. Clarke

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

April 14, 2016

ROBERT MICHAEL HERRING, Petitioner,
v.
HAROLD CLARKE, Respondent.

MEMORANDUM OPINION

JAMES R. SPENCER SENIOR U.S. DISTRICT JUDGE

Robert Michael Herring, a Virginia state prisoner proceeding pro se and in forma pauperis, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition") challenging his conviction in the Circuit Court of the City of Chesapeake, Virginia ("Circuit Court"). Respondent moves to dismiss the § 2254 Petition. (ECF No. 54.) Herring has responded. (ECF No. 58.) On January 15, 2015, Respondent consented to the jurisdiction of the Magistrate Judge. (ECF No. 50.) On January 20, 2015, Herring returned his consent to the jurisdiction of the Magistrate Judge form that indicated that he declined consent; however, the matter was mistakenly referred to the Magistrate Judge for all proceedings. By Memorandum Opinion and Final Order entered on October 5, 2015, the Magistrate Judge granted Respondent's Motion to Dismiss and denied Herring's § 2254 Petition. (ECF Nos. 62-63.)

On March 22, 2016, the United States Court of Appeals for the Fourth Circuit vacated and remanded the action because Herring had declined consent to the Magistrate Judge's jurisdiction, and thus, the Magistrate Judge improperly handled the proceedings. Herring v. Clarke, No. 15-7779, 2016 WL 1104083, at *1 (4th Cir. Mar. 22, 2016). The Fourth Circuit vacated the Magistrate Judge's dismissal order and remanded for further proceedings.

The matter is ripe for disposition. As explained below, the Court finds that Herring's claims lack merit for the same reasons as the previously explained by the Magistrate Judge.

I. PROCEDURAL HISTORY

Following a bench trial, the Circuit Court convicted Herring of breaking and entering and petit larceny, and sentenced him to an active term of four years of incarceration. Commonwealth v. Herring, Nos. CR10-1797-00 and CR10-1797-01, at 1-3 (Va. Cir. Ct. May 18, 2011). Herring appealed. The Court of Appeals of Virginia denied the petition for appeal. Herring v. Commonwealth, No. 1605-11-1, at 1 (Va. Ct. App. Nov. 16, 2011). The Supreme Court of Virginia refused Herring's subsequent petition for appeal. Herring v. Commonwealth, No. 112220, at 1 (Va. May 31, 2012).

Herring filed a petition for a writ of habeas corpus in the Supreme Court of Virginia raising forty-three claims of ineffective assistance of counsel. Petition for Writ of Habeas Corpus at 1-50, Herring v. Dir. of the Dep 't of Corr., No. 121663 (Va. filed Oct. 1, 2012). Finding that Herring failed to demonstrate ineffective assistance of trial counsel, the Supreme Court of Virginia dismissed his petition. Herring v. Dir. of the Dep't of Corr., No. 121663, at 1-23 (Va. Mar. 20, 2013).

In May 2013, Herring filed the instant § 2254 Petition. By Memorandum Opinion and Order entered June 24, 2014, the Court dismissed the action without prejudice because Herring failed to keep the Court apprised of his current address. On July 11, 2014, Herring moved for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). By Memorandum Opinion and Order entered January 16, 2015, the Court granted his motion, vacated the dismissal order, and re-opened the action. (ECF Nos. 48-49.)

In his nearly 160-page § 2254 Petition, Herring faults counsel for purported errors that have little to no bearing on Herring's guilt, which is obvious from the record. Herring's main themes stem from his ongoing belief that the search of a house that he claims was not his residence violated the Fourth Amendment, [1] that the Commonwealth engaged in prosecutorial misconduct by arresting him for different crimes than he was ultimately charged with and convicted of, and that he told Chris Averitt to go to Greenbrier Farms, not Basnight Land and Lawn. Herring insists that counsel should have objected on frivolous grounds to almost every aspect of the Commonwealth's evidence and the prosecutor's fair summary of that evidence. In his repetitive claims, Herring contends that counsel rendered ineffective assistance[2] on the following grounds:[3]

Claim 1: Counsel failed to object to the warrantless search of Petitioner's residence.
Claim 3: Counsel failed to object to Petitioner's false arrest without a warrant or indictment.
Claim 4: Counsel failed to object at the preliminary hearing to Petitioner's unlawful search and seizure.
Claim 5: Counsel failed to object at the preliminary hearing to Petitioner's false arrest without a warrant or indictment.
Claim 6: Counsel failed to have the preliminary hearing recorded by a certified court reporter.
Claim 7: Counsel "failed to object to the nolle prosequi of the charge of possession of stolen property. . . . Counsel should have demanded an out right dismissal." (§ 2254 Pet. 12.)
Claim 8: "Counsel failed to object that the two felony charges that were certified to the Circuit Court were not the charges that were returned by the Grand Jury." (Id.)
Claim 9: Counsel failed to object to the Commonwealth's use of perjured testimony before the grand jury thereby violating Herring's right to due process.[4]
Claim 10: Counsel failed to move for dismissal of the grand jury indictments because "both of the indictments were had by the [Commonwealth's] knowing use of improper tactics." (Id. at 14.)
Claim 14: Counsel failed to object during trial that police conducted an illegal search of Herring's residence.
Claim 15: Counsel failed to object during trial to the Commonwealth's witness's statement that he recovered two laptop computers from Herring's residence.
Claim 16: Counsel failed to object "at trial that the prosecution of [Herring] for Grand Larceny and Nighttime burglary violated due process of law because the [Commonwealth] knew that said crimes were actually committed by one Chris Averett [sic]." (Id. at 17.)
Claim 17: Counsel "at trial failed to competently object and argue that the petitioner's possession of some stolen property about ninety (90) days after the Basnight burglary did not support the [Commonwealth's] argument that [Herring] could be prosecuted for burglary and grand larceny." (Id. at 21.)
Claim 18: Counsel "failed to object at trial to the [Commonwealth's] false statement that [Herring] had told Chris Averitt to commit the crimes of burglary and grand larceny at the Basnight business." (Id. at 22.)
Claim 19: "Counsel at trial failed to object to the [Commonwealth's] false statement to the Court that [Herring] 'set the whole thing up.'" (Id. at 23.)
Claim 20: "Counsel failed to object at trial when the [Commonwealth] . . . argued that [Herring] was a principal or accessory or 'set up' the crime at the Basnight business." (Id. at 24.)
Claim 21: "Counsel failed to object at trial to the [Circuit] Court's statement that [Herring] had sent Chris Averitt to the Basnight business with the intent to commit crimes at that location." (Id. at 25.)
Claim 22: "Counsel at trial failed to object to the [Commonwealth's] false statement that [Herring] had 'inside knowledge' about property at the Basnight business and 'how to get them.'" (Id. at 26.)
Claim 23: "Counsel at trial failed to object to the [Commonwealth's] improper argument that the [Herring] was an accessory before the fact to the crimes that were committed by Chris Averitt at the Basnight business." (Id. at 28.)
Claim 24: "Counsel failed to object at trial to the [Commonwealth's] false and misleading statements that [Herring] was a principal and acting in concert with Chris Averitt, and that [Herring] was liable for Averitt's crimes." (Id. at 29.)
Claim 25: Counsel failed to object to the Circuit Court's denial of Herring's motion to strike.
Claim 26: "Counsel failed to object at trial to the [Circuit] Court's remarks about 'conspiracy.'" (Id. at 33.)
Claim 27: "Counsel at trial failed to object to the [Commonwealth's] improper remarks about the concert of action theory." (Id. at 34.)
Claim 28: "Counsel failed to object at trial to the [Commonwealth's] false and misleading statement that [Herring] 'told Mr. Averitt to go and steal those items ....'" (Id. at 36.)
Claim 29: "Counsel failed to object at trial that the [Commonwealth] had no legal right to use the testimony of the unconvicted felon Timothy Adams against [Herring]." (Id. at 37.)
Claim 30: Counsel failed to object "that the [Circuit] Court had no legal right to convict [Herring] of petit larceny, an uncharged crime." (Id. at 40.)
Claim 31: Counsel failed to object that Herring "had a due process right to be convicted or acquitted on the indictment for grand larceny, and not to be convicted of any other crime." (Id. at 41.)
Claim 35: Counsel "presented an incompetent motion to strike the burglary conviction" during sentencing. (Id. at 42.)
Claim 36: Counsel "was ineffective" during sentencing "when counsel told the Court that [Herring] was involved in the Basnight Land and Lawn burglary." (Id. at 43.)
Claim 37: Appellate counsel was ineffective when he stated in the Court of Appeals of Virginia that Herring "had been convicted as 'an accessory before the fact of burglary and grand larceny' when [Herring] had not been convicted of those crimes." (Id. at 44.)
Claim 38: Appellate counsel was ineffective when he stated in the Supreme Court of Virginia that Herring "had been convicted as 4an accessory before the fact of burglary and grand larceny' when [Herring] had not been convicted of those crimes." (Id. at 47.)
Claim 39: Appellate counsel "failed to attack the void judgment of conviction for the crime of petit larceny" in the Court of Appeals of Virginia. (Id. at 50.)
Claim 40: Appellate counsel "failed to attack the void judgment of conviction for the uncharged crime of petit larceny" in the Supreme Court of Virginia. (Id. at 51.)
Claim 41: "Counsel was ineffective at trial for failure to competently argue against the [Commonwealth] implying that [Herring] was an accessory before the fact of burglary. [Herring] was not charged for accessory before the fact of any crime." (Id. at 52.)
Claim 42: Appellate counsel improperly focused his argument in the Court of Appeals of Virginia on Herring "being an accessory before the fact of burglary and grand larceny when [Herring] had not been ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.