United States District Court, W.D. Virginia, Roanoke Division
JERMAINE C. TALFORD, Petitioner,
HAROLD CLARKE, Respondent.
Hon. Glen E. Conrad, Chief United States District Judge.
Jermaine C. Talford, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement on convictions for distribution of cocaine. Upon review of the record, the court concludes that the petition must be dismissed.
A grand jury in Bristol, Virginia, returned an indictment on May 28, 2013, charging Talford with three counts of distribution of cocaine, third or subsequent offense. (CR13000817-01, 02, 03.) The indictment alleged that Talford distributed cocaine on January 6, 10, and 12, 2013. Incidental to his arrest, the Bristol, Virginia Police Department ("BVPD") seized and stored in its evidence locker several bags containing an off-white substance that were sent to the Virginia Department of Forensic Science in March 2013 for testing.
Sometime before Talford's scheduled trial date of September 12, 2013, the Commonwealth notified defense counsel that BVPD Evidence Clerk Nancy Sluder had suffered two debilitating strokes and was not expected to be available to testify. The Commonwealth sought admission of the evidence log maintained by Sluder to prove that the BVPD had maintained custody of the seized substances. Talford's counsel filed a motion in limine to exclude the evidence log, the cocaine, and the certificates of analysis, based on Sluder's unavailability to authenticate the log entries. At a hearing on September 11, 2013, Talford waived his speedy trial rights to allow the trial judge time to decide the defense motion, and the trial was postponed.
On September 20, 2013, the judge granted Talford's motion in limine to exclude the evidence log entries about the seized substances at trial without Sluder's testimony as the person who made the relevant log entries. The judge further ruled that "absent testimony or other evidence to establish the chain of custody ... the certificate of analysis [from the forensic technician] and the seized substances" were inadmissible. (Pet. Attach. 11, ECF No. 1-1.) Talford's trial was scheduled for November 4, 2013. On October 15, Talford's counsel filed a motion to dismiss the charges, based on Sluder's unavailability, among other things.
By letter dated October 21, 2013, Talford's counsel notified him that the judge had denied the motion to dismiss. Counsel stated:
I was disappointed in the Judge's ruling. I understand that you feel that the Judge misled you when we waived speedy trial. ... I will be filing an appropriate objection so that is preserved for an appeal if you are convicted.
As we have previously discussed, if convicted of these charges in a jury trial, the Jury wouldn't be able to sentence you to any less than the mandatory minimum of ten years on each count convicted. . . . [T]he Commonwealth . . . has agreed to allow you to take a plea of 12 years for all three charges [and to] amend the charges [so] that there would be no mandatory minimum.... I may be able to talk the Commonwealth down to 10 years for all three charges .... [If] you . . . take this matter to a jury trial... you could be convicted of all three counts and serve a minimum of 30 years to potentially life in prison.
My advice to you at this time is to seriously reconsider the Commonwealth's plea offer. If the Confidential Informant testifies and the other necessary witnesses testify, including the evidence clerk, I feel a conviction is likely at least on the one count that the video is quite good and you will be facing much more time than is currently offered.
This all being said, the ultimate decision is yours and yours alone.
(Pet. Attach., ECF No. 1-1.) Counsel's letter also explained that he could not comply with Talford's request for him to pursue a nolle prosequi of the charges, because only the Commonwealth could follow this procedure, and it was not "at a position at this time to do so." (Id.)
It is undisputed that on the day of Talford's trial, Sluder was available to testify against Talford. Instead of facing trial before the jury, however, Talford accepted a plea bargain. Under the terms of the plea agreement, in exchange for Talford's Alford guilty plea to three amended charges of distribution of cocaine, first offense, Talford would be sentenced to ...