United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
Lamonte Hill, a Virginia inmate proceeding pro se, timely
filed a petition for a writ of habeas corpus, pursuant to 28
U:S.C. § 2254, challenging the validity of Hill's
confinement on a judgment in Franklin County Circuit Court
for two counts of grand larceny in violation of Va. Code
§ 19.2-254. Respondent filed a motion to dismiss, and
Hill responded, making the matter ripe for disposition. After
review of the record, I grant the motion to dismiss and
dismiss the petition.
morning of July 5, 2010, Rocky Mount Food Lion employees
arrived at work to discover that a break-in had occurred
overnight. A burglar had cut an entry-hole into the back
wall, and the thief had stolen $5, 692 of cigarettes. The
store surveillance cameras captured a male who fit Hill's
description inside the store, holding a bag, and going to
various cigarette dispensing locations. Employees called the
local police, who began investigating.
morning of August 1, 2010, the owner of the Lucky 2 Mart,
located in the southern part of Franklin County, discovered
that someone had cut an entry-hole into the back wall of his
store and absconded with $18, 000 of cigarettes.
Unfortunately, the surveillance cameras and motion detectors
were not functioning. Again, local police began investigating.
August 8, 2010, Lt. Mandeville of the Botetourt County
Sheriffs Department responded to a call from 604 Minute
Market regarding a break-in attempt. Preliminary
investigation did not reveal any suspects,  but around this
time, Botetourt County officers discovered that similar
burglaries, with the same modus
operandi had occurred in Campbell County, Franklin
County, and the City of Lynchburg. A multi-jurisdictional,
cooperative investigation began.
September 4, 2010, Botetourt County Deputy Bruce stopped a
suspicious vehicle in the Greenway Market parking lot, long
after the store had closed. Hours later, Greenway Market
employees reported a suspicious man that claimed to be from
the store's security provider, but the individual left
before Greenway Market employees phoned police.
September 9, 2010, Lt. Mandeville obtained surveillance
footage from the 604 Minute Market and Greenway Market. In the
Greenway Market surveillance tape, the suspicious man, who
claimed to be from the store's security provider, placed
tape over security motion sensors. Lt. Mandeville strongly
suspected that the videos from the two stores showed the same
individual: a black male matching Hill's description.
September 10, 2010, Deputy Bruce informed Lt. Mandeville
about the suspicious vehicle in the Greenway Market parking
lot, and thereafter Lt. Mandeville obtained the license and
DMV information on the two black males that Deputy Bruce had
stopped on the morning of September 4, 2010. Lt. Mandeville
then compared the DMV photos with the surveillance footage;
Lt. Mandeville believed that one of the black males from the
parking lot stop, Hill, was the same black male who appeared
in the 604 Minute Market and Greenway Market surveillance
additional DMV searches, Lt. Mandeville discovered Hill's
Bedford address and his ownership of a 2003 Chevrolet. Lt.
Mandeville consulted with the Commonwealth's Attorney
about attaching a GPS device to Hill's vehicle, and the
Commonwealth's Attorney advised that a search warrant was
unnecessary. The controlling precedent at the time, Foltz
v. Commonwealth, 698 S.E.2d 281 (Va. Ct. App. 2010),
stated that the placement of a GPS unit on a vehicle did not
constitute a search or seizure. Lt. Mandeville directed
Botetourt Deputy Dillow to place a GPS on Hill's
vehicle. On September 16, 2010, Deputy Dillow
traveled to the city of Bedford, located the Chevrolet
outside of Hill's home, and attached the GPS unit onto
the undercarriage of Hill's vehicle at approximately 4:30
A.M. The GPS device remained attached to Hill's vehicle
until September 27, 2010.
about September 21, 2010, Lt. Mandeville met with Campbell
County Investigator Tracy Emerson to review Botetourt County
surveillance videos, because Emerson suspected that Hill was
the culprit for similar Campbell County break-ins.
Investigators initially could not connect any getaway
vehicles to Hill; however, Emerson discovered that Hill had
rented a silver or gray Chevrolet HHR from a car rental
company several times in months prior, and a similar vehicle
appeared in some of the surveillance tapes.
morning of September 27, 2010, a Campbell County Food Lion
reported a break-in where an entry-hole had been cut into the
back wall of the store, and cigarettes had been
stolen. Emerson called Lt. Mandeville, who shared
GPS data showing that Hill's vehicle had been in the Food
Lion parking lot for over an hour earlier that morning.
Investigators worked on obtaining search warrants for
Hill's vehicle and home. Later that day, Campbell County
officers contacted the Bedford Police Department to set up
surveillance of Hill's vehicle and coordinate an arrest.
Bedford officers then followed Hill and associate Troy Blake
when they left Hill's house. Police found stolen
cigarettes when they stopped the vehicle, including cartons
in the back seat of the vehicle poorly concealed by bedding,
and officers took Hill and Blake into custody. After officers
advised them of their Miranda rights, Blake gave a
full statement implicating both Hill and himself in the
Franklin County burglaries, and Hill also admitted
involvement in the Franklin County crimes.
November 1, 2010, a grand jury of Franklin County Circuit
Court indicted Hill with two counts of burglary under Va.
Code § 18.2-91, two counts of grand larceny under Va.
Code § 18.2-95, and two counts of misdemeanor property
damage under Va. Code § 18.2-137. On April 18, 2011,
Hill filed a motion to suppress the GPS evidence, as well as
other evidence gathered in mid-September, arguing that the
Botetourt County Sheriffs Department violated Hill's
Fourth Amendment rights when they installed a GPS unit onto
his vehicle and monitored its location. The Franklin County
Circuit Court held several pretrial evidentiary hearings
regarding the motion to suppress on March 30, 2011, May 3,
2011, May 17, 2011, and July 8, 2011, but ultimately denied
August 18, 2011, Hill pleaded guilty to two counts of grand
larceny, and the trial court sentenced Hill to an active
sentence of three years and one month in prison, with sixteen
years and eleven months suspended. Hill entered a conditional
plea that allowed him to appeal the alleged violation of his
Fourth Amendment rights regarding the warrantless GPS
evidence, as well as pre-trial orders on suppression matters.
appealed to the Court of Appeals of Virginia on October 9,
2012, but the Court assumed without deciding that although
police violated Hill's Fourth Amendment rights, the
independent source doctrine applied and therefore the
evidence was properly admitted. On March 18, 2013, the
Supreme Court of Virginia denied Hill's appeal. Hill
filed a petition of habeas corpus with the Supreme Court of
Virginia on October 22, 2014, which the Court denied, finding
that some claims had been litigated previously and thus were
not cognizable under state habeas law, while other claims had
not been brought and thus were unexhausted and defaulted.
asserts six substantive claims in the habeas petition filed
in this court (Resp's Br. 3-4, ECF No. 22):
1. Hill's Fourth Amendment rights were violated when a
Botetourt County deputy, acting without a warrant and outside
his jurisdiction, criminally attached a GPS device to
Hill's vehicle. Hill contends that while the claim was
not so labeled on direct appeal, he intended for it to also
encompass an allegation of Fourteenth Amendment violation.
2. Hill's Fourth and Fourteenth Amendment rights were
infringed when a sheriffs deputy, acting outside his
jurisdiction, used the "power of his office to
criminally attach" a GPS device to Hill's vehicle
and used the device to gather evidence.
3. Hill's Fourth and Fourteenth Amendment rights were
violated because police officers, acting in concert,
committed multiple criminal acts by attaching the GPS to
Hill's vehicle and monitoring the device.
4. The police lacked probable cause to arrest Hill on
September 27, 2010.
5. The order entered by the Franklin County Circuit Court on
May 9, 2011, was void. It was made void by the ruling in
United States v. Jones, 565 U.S.__, 132 S.Ct. 945
(2012). Also, any subsequent and tangential orders which
flowed from the order of May 9, 2011, were likewise void, up
to, and including the opinion of the Court of Appeals of
Virginia and the order of the Supreme Court of Virginia on
6. The Commonwealth raised the alternate basis of independent
source only on appeal. The independent source doctrine was
inapplicable to the facts in this case. The historical record
does not support the application of the doctrine. There was
not probable cause for the police to arrest Hill based on
evidence from September 10, 2010 through September 13, 2010.
moves to dismiss Hill's habeas claims as procedurally
barred and/or without merit, and Hill has responded to the
A. Procedural Bar of Substantive Claims
obtain federal habeas relief, Hill 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
(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;
(2) Resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d); see also Williams v.
Taylor, 529 U.S. 362, 403-13 (2000). "Where, as
here, the state court's application of governing federal
law is challenged, it must be shown to be not only erroneous,
but objectively unreasonable." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003). Under this standard,
"[a] state court's determination that a claim lacks
merit precludes federal habeas relief so long as fair-minded
jurists could agree on the correctness of the state
court's decision." Harrington v. Richter,
562 U.S. 86, 101 (2011) (omitting internal quotations).
federal court may not grant a writ of habeas corpus to a
petitioner in state custody unless the petitioner has first
exhausted his state remedies by presenting his claims to the
highest state court." Baker v. Corcoran, 220
F.3d 276, 288 (4th Cir. 2000) (citing 28 U.S.C. §
2254(b)(1); O'Sullivan v. Boerckel, 526 U.S.
838, 848 (1999)). To meet the exhaustion requirement, a
petitioner "must have presented to the state court both
the operative facts and the controlling legal
principles." Kasi v. Angelone,300 F.3d 487,
501-02 (4th Cir. 2002) (internal quotation marks and citation
omitted). "A claim that has not been presented to the
highest state court nevertheless may be treated as exhausted
if it is clear that the claim would be ...