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Becton v. Zook

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

July 25, 2016

MAURICE J. BECTON, Petitioner,
v.
WARDEN ZOOK, Respondent.

          Maurice J. Becton, Petitioner, Pro Se.

          Mr. Zook, Respondent, represented by Christopher Paul Schandevel, Office of the Attorney General.

          REPORT AND RECOMMENDATION

          RODERICK C. YOUNG, Magistrate Judge.

         Maurice James Becton, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 (hereinafter "§ 2254 Petition, " ECF No. 1). The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Becton raises the following claim for relief:[1]

Claim One: Counsel rendered ineffective assistance by "fail[ing] to adequately prepare defense witnesses for testimony before tak[ing] the stand." (§ 2254 Pet. 6.)[2]

         Respondent moves to dismiss. Despite Respondent's provision of Roseboro [3] notice, Becton has not responded. For the reasons that follow, it is RECOMMENDED that the Motion to Dismiss (ECF No. 8) be GRANTED and the § 2254 Petition be DENIED.

         A. Procedural History

         On June 17, 2011, the Circuit Court for the County of Amelia, Virginia ("Circuit Court") convicted Becton of five counts of grand larceny and five counts of breaking and entering while armed, for home break-ins that occurred on May 14, 2010; July 14, 2010; on or about July 16, 2010; and two on July 29, 2010. (ECF No. 10-1, at 4-8.) The Court sentenced Becton to a total of 220 years in prison with 208 of those years suspended. ( Id. at 8.)

         Becton appealed. On November 11, 2011, the Court of Appeals granted in part and denied in part Becton's petition for appeal. Becton v. Commonwealth, No. 1123-11-2, at 1 (Va. Ct. App. Nov. 22, 2011). The Court of Appeals of Virginia aptly explained the evidence of Becton's guilt as follows:

Appellant argues the evidence was insufficient to sustain his convictions. He contends that the trial court erred in accepting the uncorroborated testimony of a convicted felon in finding the evidence sufficient beyond a reasonable doubt.
"Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Moreover, "[i]f there is evidence to support the conviction, an appellate court is not permitted to substitute its own judgment for that of the finder of fact, even if the appellate court might have reached a different conclusion." Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72(1998).
Snow v. Commonwealth, 33 Va.App. 766, 774, 537 S.E.2d 6, 10 (2000). So viewed, the evidence proved that D. Brown and appellant were once in a relationship. At trial D. Brown was shown photographs of several houses and testified that together she and appellant broke into all of them. She indicated that they broke into a house located on Butlers Road where they stole jewelry and electronics. They broke into a home on Daybreak Drive and from there they took jewelry and "maybe a TV." She testified they also broke into a residence on Wills Road and stole jewelry, a camera, and "maybe a television." They broke into a home on Bevils Bridge Road, taking jewelry, a television, and possibly a firearm.
D. Brown explained that they pawned the jewelry for cash, although she was not sure what happened to the firearms. She testified that they always broke in between 8:00 a.m. and 4:00 p.m. in the afternoon. On each occasion they wore masks and gloves; she carried a handbag and appellant carried a gun. D. Brown is a convicted felon with over sixty charges pending in other jurisdictions.
Appellant argues that the uncorroborated testimony of a convicted felon is insufficient to convict him of the charges.
We first note that D. Brown's testimony was not uncorroborated. At least one victim of each break-in testified that their home had been invaded, that items of jewelry, electronics, and sometimes firearms were taken, and that all these events occurred during daylight hours. In addition, a jewelry shop owner testified that he recognized D. Brown and that she sold gold jewelry to him on several occasions. Thus, we find that D. Brown's testimony was not uncorroborated.
"The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). The trier of fact is not required to accept a witness' testimony, but instead is free to "rely on it in whole, in part, or reject it completely." Rollston v. Commonwealth, 11 Va.App. 535, 547, 399 S.E.2d 823, 830 (1991).
Although she cannot remember specific items taken from specific homes, D. Brown's testimony was not inherently incredible. She remembered the homes shown to her in the photographs, and explained to the trial court why she remembered each particular house. The trial court was free to accept D. Brown's testimony that she and appellant committed these crimes together. We find no error with the trial court's credibility determination or with its determination of appellant's guilt. The Commonwealth's evidence was competent, was not ...

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