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Harrison v. Clarke

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

August 29, 2016

Darrell Deon Harrison, Petitioner,
Harold W. Clarke, Respondent.


          Leonie M. Brinkema United States District Judge.

         Darrell Deon Harrison ("Harrison" or "petitioner"), 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 constitutionality of his robbery conviction entered after a jury trial in the Circuit Court for the City of Richmond. On May 9, 2016, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief and exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) and Local Rule 7K, and after receiving an extension of time petitioner filed a response. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice.

         I. Background

         The record reflects the following. Petitioner is detained pursuant to a final judgment of the Circuit Court of the City of Richmond, entered February 12, 2013. Motion to Dismiss at Ex. 1. Pursuant to a jury trial, petitioner was convicted of robbery, in violation of Virginia Code § 18.2-58, and found not guilty of use of a firearm in the commission of a felony. Id. Petitioner was sentenced to ten years imprisonment, with no years suspended.

         Petitioner pursued a direct appeal to the Court of Appeals of Virginia, arguing that the evidence presented at trial was insufficient to sustain his conviction. Id. The Court of Appeals of Virginia denied the appeal and the Supreme Court of Virginia subsequently refused his petition for appeal. Id.

         The facts established at trial were that, on January 18, 2012, Fatima Stokes ("Stokes") and Jonathan Hardesty ("Hardesty") were working as bank tellers at a Wells Fargo branch. October 12, 2012 Trial Tr at 52-53, 57. A man dressed in a long, dark brown fur coat with a matching hat, white tennis shoes, and what appeared to be a Louis Vuitton purse, sunglasses, and pink lipstick, approached Stokes at her window and stated that he wanted to make a withdrawal. Id. at 53-54, 56, 89. When Stokes turned to hand him a withdrawal slip she saw a note in her window that read "this is a bank robbery and I have a gun." Id. at 53. Stokes gave the man all the money in her top drawer, which he put in his purse and then walked out of the building. Id. at 56. During the robbery, Stokes was only able to see the face of the robber from the nose down. Id. at 78-79. When Stokes was first asked to describe the robber, she did not mention that he was wearing a hat, did not describe the shoes he was wearing, and stated that he was wearing big, dark sunglasses. Id. at 71-72. Hardesty was two teller windows down from Stokes at the time of the robbery. Id. at 88. He initially described the robber as wearing clear reading glasses, which he admitted at trial was incorrect, black leather shoes, although he later testified petitioner was wearing white tennis shoes, and a black fur coat, which he described at trial as "brownish." Id. at 97-99. He told the police after the robbery that he was 90 percent sure that petitioner was the robber based on a photo lineup. Id. at 95. At trial both Stokes and Hardesty identified petitioner as the robber. Id. at 58, 92.

         At the time of the robbery, petitioner was living with his ex-wife, Theodora Thomas ("Thomas"). Id. at 105. Thomas testified that, before the robbery, she came home one day in January 2012 to find that her room was in disarray and that her Dooney & Bourke purse, long black mink coat, necklace, and skirt were missing. Id. at 107-09. Thomas testified that when she saw the video of the Wells Fargo bank robbery she recognized the robber as petitioner who was wearing her missing belongings and carrying her missing purse. Id. atl 11-12. Thomas called the police and identified petitioner as the robber, after which the police searched her home on January 25 or 26, 2012. Id. at 112-13, 120. The police did not find any fur coat, fur hat, or purse; however, they found a pair of white tennis shoes. Id. at 113, 120. After the search, Thomas spoke with petitioner who stated that he would get Thomas her belongings. Id. at 116. Petitioner asked Thomas to state that the items were not hers. Id. at 117. When Thomas moved out of her house in March 2012, she found her fur coat and her skirt in the room petitioner had been occupying. Id. at 113. Thomas told the police about the fur coat but did not mention it to petitioner's counsel when they met. Id. at 115, 125. Thomas brought the coat to trial and identified the coat as hers; however, only a photograph of the coat was submitted into evidence. Id. at 114-15.

         Before his trial, petitioner was incarcerated with David White. Id. at 128. White testified at trial that petitioner told him he was "the guy they got on the news about dressing as a woman robbing that bank." Id. at 129. Petitioner also told White that he hid the bags under his eyes by wearing large sunglasses and that one of the bank tellers could tell that he was not a woman based on the way he walked. Id. Finally, petitioner told White that he was trying to get in touch with "Cootie, " which is Thomas' childhood nickname, regarding "certain female clothing." Id. at 126.131.

         After pursuing his direct appeal, petitioner timely filed a petition for a writ of habeas corpus in the Supreme Court of Virginia on March 6, 2015. Motion to Dismiss at Ex. 2. The Supreme Court of Virginia dismissed the habeas petition by order dated November 23, 2015. Id. at Ex. 6.

         On March 3, 2016, petitioner filed the instant federal petition, wherein he challenges his conviction on eight allegations of ineffective assistance of counsel.[1] Specifically, he alleges that his counsel failed to:

1. Challenge the reliability of the out-of-court identifications of petitioner as the robber.
2. Move to suppress Thomas' out-of-court identification of petitioner as the robber.
3. Challenge White's testimony and motivation for testifying.
4. Object to the admission of the picture of the fur coat, rather than the actual fur coat, as both were inadmissible because they were not disclosed by the prosecution prior to trial, and failed to object and move for a mistrial.[2]
5. Subpoena Detective Robert Albright or any of the investigators involved.[3]
6. Request a jury instruction on the unreliability of eyewitness ...

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