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Cubbage v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

November 3, 2016

DANNY RAY CUBBAGE, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge

         Danny Ray Cubbage, 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 a final order by the Page County Circuit Court convicting him of one count of Attempted Robbery under Va. Code §§ 18.2-26 and 18.2-58, and one count of Use of a Firearm while Attempting to Commit a Felony under Va. Code § 18.2-53.1. Respondent filed a motion to dismiss, and Cubbage responded, making the matter ripe for disposition. After review of the record, the court concludes that the petition must be dismissed.

         I.

         On November 23, 2011, shortly before 8:00 P.M., a masked man armed with a rifle approached Paul Spangler and demanded his wallet.[1] Spangler fought with the assailant, wrestled over the weapon, and eventually ripped the mask off the attempted robber, which gave Spangler a good look at his face. The assailant dropped the rifle and fled. Spangler called the police, and officers arrived approximately twenty minutes later. Spangler gave a detailed description of his would-be robber, stating that he had seen the assailant close up during the struggle and would recognize him again.[2] Page County law enforcement tracked the assailant with a bloodhound using the discarded mask for the assailant's scent, which led them to the nearby residence of Jeff and Felicia Kibler. Investigators learned from the Kiblers that Cubbage arrived at their door around the time of the attempted robbery, without shoes, that he appeared anxious, and that the Kiblers gave him a ride to his mother's house. The Kiblers also reported that Cubbage leaned back in the car seat so as to not be visible during the short ride to his mother's house.

         Around 8:30 P.M., police found and interviewed Cubbage at his mother's house. Cubbage gave inconsistent statements about his activities that day and appeared extremely nervous, [3] which heightened suspicions among the officers. Police brought Spangler to the home of Cubbage's mother, and performed a "showup." Spangler remained in the back of a police car while Cubbage was brought out and shown to Spangler in a police car's high beams and an officer's flashlight. Spangler identified Cubbage as his assailant, with a 90% degree of confidence.[4]

         Cubbage was charged in a two count indictment with attempted robbery and use of a firearm while attempting to commit a felony, and was found guilty of both counts by a Page County jury on January 16, 2013. The Court sentenced Cubbage to eight years' imprisonment. Cubbage appealed to the Court of Appeals of Virginia alleging insufficiency of evidence, but the Court denied the petition on January 8, 2014. Cubbage appealed to the Supreme Court of Virginia which denied an appeal writ on May 15, 2014. Cubbage then filed a petition for a writ of habeas corpus to the Supreme Court of Virginia which was denied on November 13, 2015, finding procedural defaults under Slayton v. Parrigan, 205 S.E. 680 (Va. 1974), cert, denied, 419 U.S. 1108 (1975), and that Cubbage failed to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

         Cubbage asserts four claims in the habeas petition filed in this court. (Pet. 5, 6, 8, 10, ECF No. 1):

1. Cubbage was denied due process because the identification procedure used by Page County law enforcement officers was overly suggestive and conducive to irreparable mistaken identification.
2. Cubbage was denied due process because the indictment was constitutionally insufficient.
3. Cubbage's trial counsel was ineffective for failing to raise a due process claim regarding the defective indictment.
4. Cubbage's trial counsel was ineffective for failing to raise a due process claim regarding the suggestive identification procedure.

         Respondent moves to dismiss Cubbage's claims as procedurally barred and/or without merit, and Cubbage has responded to the motion.

         II.

         A. Substantive Claims

         To obtain federal habeas relief, Cubbage must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

         Under 28 U.S.C. § 2254(d), however, the federal habeas court may not grant a writ of habeas corpus based on any claim that a state court decided on the merits unless that adjudication:

(1) Resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) Resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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