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Hill v. Clarke

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

December 1, 2016

HAROLD W. CLARKE, Respondent.


          Jackson L. Kiser Senior United States District Judge

         Keith 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.


         On the 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.

         On the 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.[1] Again, local police began investigating.

         On 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, [2] but around this time, Botetourt County officers discovered that similar burglaries, with the same modus operandi[3] had occurred in Campbell County, Franklin County, and the City of Lynchburg. A multi-jurisdictional, cooperative investigation began.

         On 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.[4]

         On September 9, 2010, Lt. Mandeville obtained surveillance footage from the 604 Minute Market[5] 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.

         On 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 videos.

         After 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.[6] 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.

         On or 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.

         On the 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.[7] 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.

         On 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 Hill's motion.

         On 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.

         Hill 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.

         Hill asserts six substantive claims in the habeas petition filed in this court (Resp's Br. 3-4, ECF No. 22):[8]

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 direct appeal.
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.

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

         II. A. Procedural Bar of Substantive Claims

         To 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 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 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).

         "[A] 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 ...

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