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McCarter v. Clarke

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

November 15, 2016

ERIC C. McCARTER, Petitioner,
v.
HAROLD W. CLARKE, Respondent.

          MEMORANDUM OPINION

          John A. Gibney, Jr. United States District Judge.

         Eric C. 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 grounds:[1]

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 7.)
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.)

         Respondent moves to dismiss the § 2254 Petition. (ECF No. 12.) McCarter has responded. (ECF No. 16.) The matter is ripe for disposition.

         I. PROCEDURAL HISTORY

         Following 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).[2] 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).

         On May 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.)[3] 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).

         II. EXHAUSTION AND PROCEDURAL DEFAULT

         State 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 ...


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