United States District Court, E.D. Virginia, Richmond Division
ERIC C. McCARTER, Petitioner,
HAROLD W. CLARKE, Respondent.
A. Gibney, Jr. United States District Judge.
McCarter, a Virginia state prisoner proceeding pro
se and in forma pauperis, brings this petition
pursuant to 28 U.S.C. § 2254 ("§ 2254
Petition, " ECF No. 1) challenging his conviction in the
Circuit Court of the County of Caroline ("Circuit
Court"). In his § 2254 Petition, McCarter argues
entitlement to relief based upon the following
Claim One: "Trial court erred in finding trial counsel
effective for not requesting a[n] informant instruction to be
given to the jury." (§ 2254 Pet. 6.)
Claim Two: "Trial court erred in finding that trial
counsel was effective by not waiting for full discovery,
before having the suppression hearing." (Id. at
Claim Three: "Trial court erred in finding that trial
counsel was effective by trial counsel not requesting a
[Franks v. Delaware, 438 U.S. 98 (1978)]
hearing." (Id. at 9.)
Claim Four: "Trial court imposed sentence in violation
of the prescribed statutory range of punishment required by
law." (Id. at 11.)
moves to dismiss the § 2254 Petition. (ECF No. 12.)
McCarter has responded. (ECF No. 16.) The matter is ripe for
a jury trial, the Circuit Court convicted McCarter of one
count of distribution of a controlled substance, third or
subsequent offense, and sentenced him to twelve years of
incarceration. Commonwealth v. McCarter, Nos.
CR11000529-00, at 1-3 (Va. Cir. Ct. July 8,
2013). McCarter appealed. The Court of Appeals of
Virginia denied McCarter's petition for appeal with
respect to the drug distribution conviction. McCarter v.
Commonwealth, No. 0226- 13-2, at 1-2 (Va. Ct. App. Dec.
27, 2013). The Court of Appeals of Virginia aptly summarized
the overwhelming evidence of his guilt as follows:
[T]he evidence proved that Franklin Cauthorne, working
undercover for the police, went to appellant's home on
July 18, 2011, and purchased cocaine. Cauthorne's
testimony regarding the transaction was corroborated by the
testimony of the police officers involved in the undercover
operation, as well as the audio recording made by equipment
concealed on Cauthorne's person.
McCarter v. Commonwealth, No. 0226-13-2, at 4 (Va.
Ct. App. July 17, 2013). Based on this information, a search
warrant was executed at McCarter's home and officers
found evidence of drug distribution and usage. (See
Oct 29, 2012 Tr. 132.) The Court of Appeals of Virginia
concluded that "[t]he Commonwealth's evidence was
competent, was not inherently incredible, and was sufficient
to prove beyond a reasonable doubt that appellant was guilty
of distributing cocaine." McCarter, No.
0226-13-2, at 4. The Supreme Court of Virginia refused
McCarter's subsequent petition for appeal. McCarter
v. Commonwealth, No. 150077, at 1 (Va. June 19, 2015).
22, 2014, McCarter filed a petition for a writ of habeas
corpus in the Circuit Court raising claims similar to Claims
One through Three of the instant § 2254 Petition.
(See ECF No. 20-1, at 2-17.) Finding that McCarter failed
to demonstrate ineffective assistance of trial counsel, on
August 27, 2014, the Circuit Court dismissed his petition.
(Id. at 55-61.) The Supreme Court of Virginia
dismissed in part, and refused in part, his petition for
appeal. McCarter v. Dir., Va. Dep't of Corr.,
No. 141553, at 1 (Va. June 14, 2015).
EXHAUSTION AND PROCEDURAL DEFAULT
exhaustion '"is rooted in considerations of
federal-state comity, '" and in Congressional
determination via federal habeas laws "that exhaustion
of adequate state remedies will 'best serve the policies
of federalism.'" Slavek v. Hinkle, 359
F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v.
Rodriguez,411 U.S. 475, 491-92 & n. 10 (1973)). The
purpose of the exhaustion requirement is "to give the
State an initial opportunity to pass upon and correct alleged
violations of its prisoners' federal rights."
Picard v. Connor,404 U.S. 270, 275 (1971) (internal
quotation marks omitted). Exhaustion has two aspects. First,
a petitioner must utilize all available state remedies before
he can apply for federal habeas relief. See
O'Sullivan v. Boerckel,526 U.S. 838, 844-48 (1999).
As to whether a petitioner has used all available state
remedies, the statute notes that a habeas petitioner
"shall not be deemed to ...