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Booker v. Clarke

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

September 8, 2016

Walter Delaney Booker, Jr., Petitioner,
v.
Harold W. Clarke, Respondent.

          MEMORANDUM OPINION

          JAMES C. CACHERIS, UNITED STATES DISTRICT JUDGE

         Walter Delaney Booker, Jr., 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 conviction of possession with intent to distribute heroin entered on a plea of guilty in the Circuit Court of the City of Portsmouth. Petitioner also challenges the revocation of a previously-suspended sentence for possession of cocaine with the intent to distribute and the imposition of an eight-year prison term. On December 29, 2015, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Booker was provided 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 to do so he several replies, captioned as a Motion to Refer to Previous Submitted Exhibits and Briefs, an Objection to Answer to Complaint [and] Motion to Dismiss, a Declaration, and a Declaration of Authenticity of Exhibits with several exhibits attached. Accordingly, the matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice. Petitioner's Renewed Motion for Evidentiary Hearing will be denied.

         I. Background

         The facts underlying the instant petition were succinctly described on petitioner's belated direct appeal[1] as follow:

Appellant was charged with possession of heroin with the intent to distribute, third offense, possession of a firearm while in possession of heroin with the intent to distribute, and possession of a firearm as a convicted felon. The maximum sentencing exposure for these charges is life plus 10 years. See Code § 18.2-248(C), Code § 18.2-308.4(C), Code § 18.2-308.2(A). In addition, the charge for possession of a firearm while possessing heroin with the intent to distribute carries a mandatory minimum of five years in prison. See Code § 18.2-308.4(C). The charge for possession of a firearm by a convicted felon carries a mandatory minimum of two years in prison for persons like appellant who were convicted of a felony within the past 10 years. Code § 18.2-308.2(A). Finally, the charge of distributing illegal drugs, third offense, carries a mandatory minimum of 10 years in prison. Code § 18.2-248(C).
Appellant pled guilty pursuant to a written plea agreement. In exchange for his guilty plea, the prosecution agreed to nolle prosequi the two firearm charges and to reduce the drug distribution charge from a third offense to a first offense. This agreement meant that appellant faced a possible maximum of 40 years in prison rather than life plus 10 years and that he no longer faced a mandatory minimum sentence. See Code § 18.2-248(A). Appellant signed the plea acceptance form.
Following the customary detailed colloquy with appellant, the court accepted the plea. The prosecution proffered that during a homicide investigation, police searched a residence leased by Natasha Reid. In Ms. Reid's bedroom, police uncovered nine capsules of heroin in a plastic baggie, 100 empty capsules, two strainers, a razor blade, 1 45-caliber handgun, and $5, 000 in currency. Reid and appellant both admitted that he was staying with Reid at this residence. Personal paperwork belonging to Booker was recovered in the same drawer where the heroin was found. Appellant's DNA was on the gun. The prosecution would have offered evidence that the items recovered in connection with the drugs were inconsistent with personal use.
On the morning of sentencing, approximately five months after his guilty plea, appellant verbally informed the court that he wished to withdraw his guilty plea. Appellant offered the following explanation:
Well, Your Honor, at the time I was under a lot of duress and advisement that it would be in my best interest to plead guilty to first offense, Your Honor, and at the same time I feel that it was circumstantial evidence that was against me being I was not at the scene of the crime. It was other individuals and no items were found on my person, nor around me. I don't think I should plead guilty to something that I really didn't do. I don't feel that; so under those circumstances, Your Honor, I want to withdraw my plea.
To this explanation, defense counsel added that he had advised appellant 'very strongly' to accept the plea, stating that he 'thought it was a reasonable plea.' Counsel stated that he advised appellant that there was a real possibility that appellant would be found guilty based on the evidence. Counsel also stated that he reviewed the prosecution's plea offer with appellant, that it was appellant's choice, and that counsel 'told him whatever his choice is it's a choice I would support.'
The court denied appellant's motion to withdraw his guilty plea. The court then sentenced appellant to fifteen years with twelve years suspended. The court also revoked eight years of a previously suspended sentence for possession of cocaine with the intent to distribute. One of the conditions of appellant's previously suspended sentence was that he obey all federal and state laws.

Booker v. Commonwealth. R. No. 1730-11-1 and 1916-11-1 (Va. Ct. App. Dec. 18, 2012), slip op. at 1-3; published at 61 Va.App. 323, 734 S.E.2d 729 (2012).[2] On May 7, 2013, the Supreme Court of Virginia refused without opinion Booker's second-tier petitions for appeal in both his criminal case (Record No. 130122) and his revocation case (Record No. 130121).

         In February, 2014, Booker filed a petition for a state writ of habeas corpus in the Supreme Court of Virginia, raising the same claims he makes in this federal petition. The Court dismissed the petition in a detailed written Order which will be discussed in greater detail infra. Booker v. Clarke, R. No. 140269 (Va. Feb. 9, 2015). On April 23, 2015, the Virginia court refused Booker's petition for rehearing, and on October 5, 2015, the United States Supreme Court denied certiorari review. Booker v. Clarke, 136 S.Ct. 222 (2015).

         Booker then turned to the federal forum and filed the instant petition for relief pursuant to §2254 on June 3, 2015.[3] In it, he makes the following claims:

(a) Trial counsel rendered ineffective assistance in connection with petitioner's entry of the guilty plea in that he:
(1) did not properly investigate the case or conduct discovery in order to prepare an available defense before advising petitioner to plead guilty to an offense he 'really didn't do;'
(2) did not discuss possible defenses with petitioner and advised him to answer falsely during the plea colloquy;
(3) never discussed the evidence that would be used against petitioner at trial, other than to mention that the Commonwealth intended to produce DNA evidence that was not inculpatory;
(4) did not provide adequate advice about whether petitioner should accept the plea agreement;
(5) did not move to suppress buccal swabs taken from petitioner;
(6) had an interest that conflicted with petitioner's in that he failed to honor petitioner's stated wish not to plead guilty and instead told petitioner that a conviction and life sentence would adversely affect his own reputation;
(7) did not advise petitioner of two major consequences that would result from a guilty plea;
(8) did not move to suppress statements based on an illegal seizure;
(9) did not investigate or present an alibi defense;
(10) failed to appreciate that certain evidence seized in relation to a homicide investigation was not relevant to the narcotics charge; and
(11) provided ineffective assistance as the result of the combined effect of the foregoing errors.
(b) Trial counsel provided ineffective assistance at sentencing in that he:
(1) did not move to withdraw the guilty plea when petitioner instructed him to do so;
(2) did not assist petitioner in moving to withdraw his guilty plea under Va. Code § 19.2-296;
(3) did not prepare for the revocation hearing;
(4) adversely affected the sentencing and revocation proceedings and petitioner's attempt to withdraw the guilty plea;
(5) wrongly merged the sentencing and revocation cases into a single hearing;
(6) failed to argue that petitioner should not be punished for asserting his statutory rights; and
(7) provided ineffective assistance as the result of the combined effect of the foregoing errors.
(c) Petitioner did not validly plead guilty because:
(1) trial counsel did not explain the relevant law or its application to petitioner's case;
(2) counsel instructed him to testify falsely during the plea colloquy;
(3) the court failed to advise him of two major consequences of entering the plea;
(4) counsel failed to advise him of the effect a guilty plea would have on his probation status;
(5) the Commonwealth deceived him in obtaining the plea agreement by not informing him that it would argue that the court could consider his prior drug convictions even though the charge had been reduced to first offense drug possession;
(6) the Commonwealth failed to disclose that it would seek revocation of the suspended sentence as the result of the plea;
(7) he was under duress and the undue influence of counsel when he accepted the plea agreement;
(8) the court did not inquire about his duress and thus did not make an informed decision when it did not allow him to withdraw the plea; and
(9) the combined effect of the foregoing errors rendered the plea unintelligent and involuntary.
(d) Appellate counsel provided ineffective assistance in that he:
(1) did not correctly assign error to be noticed by the appellate court;
(2) did not present a sound argument to support petitioner's reasonable defense;
(3) did not present a sound argument on duress or argue that the record showed that petitioner made his motion to ...

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