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Terry v. Fleming

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

January 26, 2017

FENTON L. TERRY, Petitioner,
v.
LESLIE FLEMING, Respondent.

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski United States District Judge.

         Fenton L. Terry, 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 judgment by the Circuit Court of the City of Danville. Respondent filed a motion to dismiss Terry's § 2254 petition, and Terry responded, making the matter ripe for disposition. After review of the record, the court concludes that none of Terry's claims have merit, requiring the motion to dismiss to be granted.

         I.

         Terry was convicted of first-degree murder of Kendra Stokes and two related firearms violations in the Circuit Court of the City of Danville. Following an unsuccessful appeal and habeas petition in state court, he now challenges his conviction in federal court. The facts and procedural history pertinent to Terry's convictions are as follows.

         On the night of April 6, 2011, Terry made several calls to his uncle, Charlie Wilson, and his friend, Mellissa Price, looking to purchase a significant amount of marijuana.[1] After Wilson and Price informed Terry that they had no marijuana to sell, Terry called Kendra Stokes shortly past 10 P.M. A cell phone expert later determined that Terry's last call to his uncle used a cell tower close to Terry's home in Ringgold, Virginia, but that Terry's call to Stokes had switched towers to one closer to the Edgewood Exxon Mart and the location where Stokes' body was found. Meanwhile, Stokes had contacted Linwood Hairston to assist in selling fake marijuana. Hairston agreed, and proceeded to buy rabbit food that the two used to imitate a pound of marijuana.

         Hairston planned to meet Stokes and the buyer (Terry) at the Exxon; Hairston would get $600 out of the $800 asking price, and Stokes would retain $200. Hairston pulled into the Exxon parking lot, and Stokes stepped out of the passenger seat of a white Mazda 626. Hairston gave Stokes the fake marijuana in a plastic grocery bag, and Stokes handed Hairston $600. Hairston watched her return to the passenger seat of the Mazda at approximately 10:15 P.M.[2]

         The Mazda then turned left onto Edgewood Rd, in the direction of the Danville Expressway. The driving time from the Exxon to the location of the victim's body is five minutes. At trial, the cell phone expert testified that Terry placed phone calls at 10:28 and 10:29 P.M., near the estimated time of the murder, and that cell phone location data from those calls indicated Terry was near the murder scene at that time. That same night, at approximately 10:30 P.M., Danville Officer William Merrill was at his residence when he heard eight to ten rapid gunshots from the area of Corning Drive.

         At 7:30 A.M. on April 7, 2011, a passerby discovered the body of Stokes in a ditch beside the Corning Drive exit ramp on the Danville Expressway. Soon after, Danville Police secured the scene, and Danville fireman Steven Ferrell arrived and observed the body; he noticed bullet wounds and confirmed that Stokes was deceased. Further, rigor mortis had set in, indicating that the homicide had occurred several hours earlier. Officer Charles Willard photographed the scene and collected all evidence, which included nine .40 caliber cartridge casings and a blue plastic grocery bag containing green leafy material. Later expert testimony opined that all bullets were fired from a single .40 caliber weapon, and that they were consistent with being fired from a Taurus pistol.

         On April 8, 2011, Detective Bonnie Oakes went to 1600 Kentuck Church Road to speak with Terry about Stokes' death. Oakes observed a white Mazda 626 in front of the house, and that the back seats had recently been cleaned, but that the front seats remained dirty. Terry agreed to speak with officers at the police station. Kathy Corker, Terry's ex-girlfriend, drove Terry to the station in the Mazda, and Oakes obtained a search warrant for the vehicle.[3] While Terry and Corker were at the police station, Lt. Scott Eanes searched the car. Lt. Eanes noticed a strong odor of cleaning products; the back seats and rear floorboards were soaking wet. He collected a swab from a red stain on the roof of the vehicle that trailed from behind the passenger's seat toward the rear window.

         Detective Clarence Goins' interview with Terry was recorded and played for the jury. At first, Terry admitted that he had spoken with Stokes about obtaining marijuana. However, Terry quickly modified his story, stating that Toby Dowdy was the purchaser. Terry then stated that neither he nor Dowdy had any further contact with Stokes. Detectives began questioning Terry regarding Stokes' phone records, and the fact that Terry's phone's geolocation data revealed a close proximity to the murder scene, around the time of the murder. Terry, when confronted with his phone's location data, stated that Dowdy had borrowed his phone. When confronted with the Exxon surveillance footage, Terry stated that Dowdy had taken the white Mazda 626.

         Later that day, Detective David Whitley interviewed Terry. Terry admitted that Dowdy was not involved, but claimed that Christopher Hayes had borrowed the car and phone at 9:50 P.M. Terry stated that Hayes returned the vehicle and phone around midnight, with Dwayne Pruitt, Jr. as a passenger. Detective Whitley noticed Terry texting upon entering the interview room, and police later obtained the messages. Terry's texts instructed Corker on what to tell police, and told her to leave with the Mazda before police could search it.

         At trial, Hayes testified that he had remained at his girlfriend's house on 602 Elizabeth St for the entire night of April 6, 2011. He did text Terry around 7 or 8 P.M. for an ounce of marijuana, but Terry's price was too high. Several others corroborated Hayes' testimony.[4]During police questioning, Hayes denied knowing Terry, denied borrowing a vehicle and/or cell phone from Terry, and denied killing Stokes.

         On April 11, 2011, Lt. Eanes executed a second search warrant for the white Mazda 626, noticed a red stain on the floorboard, and obtained an additional swab. Forensic expert Tim McClure developed a DNA profile of Stokes, as well as profiles of the April 8 and April 11 swabs. The two swabs matched Stokes' profile at each genetic marker. McClure testified that an unrelated person having those DNA characteristics was at least as unlikely as one in six-and-a-half billion.

         On April 14, 2011, Detective Whitley executed a search warrant of Terry's home. Officers discovered a steam cleaner, scales with green plant material, baggies with green plant material, a Taurus gun bag, and a firearm cleaning kit. Detective Epps later testified that the gun cleaning equipment was proper for a .40 caliber weapon. The green plant material in the baggies tested negatively for marijuana. The steam cleaner was sent to the forensic lab, where technicians found the presence of blood, but could not create a DNA profile.

         Marcus Patterson, Terry's distant relative by marriage, was an inmate along with Terry on November 29, 2011. Patterson asked Terry if he had killed the girl. Terry responded several times with "I fucked up, cuz." Patterson testified against Terry because he was friends with Stokes' husband. Patterson also testified that Terry never denied killing Stokes, only that he thought the evidence against him was too weak for a conviction.

         On November 6, 2012, Terry sought to suppress the April 8 swab because law enforcement had omitted the swab from the warrant's inventory in violation of Va. Code § 19.2-67. He also asked the court to suppress the April 11 swab even though no violation had occurred. Further, Terry argued that the search warrants for the Mazda 626 were invalid. The Circuit Court of the City of Danville denied the motions because (1) the omission of an item from a warrant may violate a statute, but does not result in evidence exclusion unless the statute provides for exclusion, or a constitutional violation occurs, (2) the April 11 swab was proper, and (3) Terry had no standing to object to the search of the Mazda.

         A jury found Terry guilty of first-degree murder and use of a firearm in the commission of a murder, and based on the same evidence, the presiding judge simultaneously found Terry guilty of possession of a firearm by a convicted felon. On December 14, 2012, the circuit court judge sentenced Terry to life imprisonment, plus an additional ten years.[5]

         Terry appealed the trial court's denial of his motion to suppress as well as the sufficiency of the evidence, but the Court of Appeals of Virginia denied the petition on August 28, 2013. After that, Terry appealed to the Supreme Court of Virginia, but the court refused to hear the request on March 7, 2014. Terry then filed a petition for a writ of habeas corpus with the Supreme Court of Virginia, but the court denied relief on January 6, 2016. Lastly, Terry filed this petition for a writ of habeas corpus on February 11, 2016 with the same claims as his state habeas:

A. The trial court erred in ruling that (1) the petitioner lacked standing to contest a search of a vehicle and (2) the evidence was admissible.
B. The trial court erred in denying petitioner's motion to strike.
C. Counsel was ineffective for (1) failing to move the trial court to suppress illegally seized evidence and (2) failing to challenge the search warrant.
D. Counsel was ineffective for failing to move the trial court to suppress evidence obtained by an unlawful search warrant.
E. Counsel was ineffective for failing to move the trial court to suppress evidence seized from the petitioner's residence (1) by failing to challenge the search warrant supporting the search of his residence, (2) by failing to challenge the petitioner's detention during the search of his residence, and (3) by failing to challenge the seizure of "green plant material" from his residence.
F. Counsel was ineffective due to a conflict of interest.
G. Counsel was ineffective for simultaneously representing a client with an adverse interest to the petitioner.
H. (1) Counsel was ineffective for failing to object or move for a mistrial when the venire said they would not find the petitioner "not guilty" if the Commonwealth failed to meet its burden and for failing to raise the issue on appeal. (2) Petitioner's right to a fair trial was violated when the venire said they would not find the petitioner "not guilty" if the Commonwealth failed to meet their burden.
I. The trial court erred in failing to appoint substitute counsel to advise the petitioner regarding a waiver of a conflict of interest.
J. (1) Counsel was ineffective for failing to object to the competency of a witness for the Commonwealth, and (2) the petitioner's right to due process was violated by counsel's failure to object to the witness' competency.
K. Counsel was ineffective (1) for failing to object that the Commonwealth did not establish a proper chain of custody for a cell phone and (2) for failing to impeach a detective with inconsistent testimony regarding who seized the petitioner's cell phone.

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

         II. Exhaustion and Procedural Default

         "[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 procedurally barred under state law if the petitioner attempted to present it to the state court." Baker, 220 F.3d at 288 (citing Gray v. Netherland. 518 U.S. 152, 161 (1996)).

         Terry has exhausted the available state court remedies for each of his federal claims because he has either "fairly present[ed] his claim to the state's highest court" or "a state procedural rule would bar consideration if the claim was . . . presented to the state court." Matthews v. Evatt. 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by U.S. v. Barnette, 644 F.3d 192 (4th Cir. 2011). Terry's direct appeal is final and any additional state habeas action would be procedurally defaulted both under Virginia's statute of limitations, Va. Code § 8.01-654(A)(2), and Virginia's successive petition statute. Va. Code § 8.01-654(B)(2). Claims that are procedurally barred under state law are barred from federal habeas review unless Terry can demonstrate cause for the default and prejudice from the constitutional error, or a miscarriage of justice. Baker. 220 F.3d at 288; Gray. 518 U.S. at 162.

         Claim A is procedurally barred by Stone v. Powell 428 U.S. 465 (1976), because "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial."[6] Id. at 482. Generally, "[e]vidence obtained by police officers in violation of the Fourth Amendment is excluded at trial in the hope that the frequency of future violations will decrease." Id. at 492. For habeas petitions, "contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs." Id. at 493.

         Terry alleged that law enforcement officials violated his Fourth Amendment rights by searching the Mazda, and therefore the trial court erred by holding that (1) Terry had no standing to object to the search, and (2) the evidence was admissible. However, the Stone doctrine bars Claim A from federal habeas review because Terry was offered a full and fair opportunity to litigate these claims: (1) the trial court held a hearing on Terry's motion to suppress, (2) the Court of Appeals of Virginia analyzed Terry's claim de novo and found no violation, and (3) the Supreme Court of Virginia reviewed the claim. Thus, Claim A is barred from federal habeas review.

         Additionally, in Terry's state habeas petition, the Supreme Court of Virginia found that portions of Claim F and Claim H, and the entirety of Claim I are procedurally barred under Slayton v. Parrigan. 215 Va. 27, 205 S.E.2d 680 (1974), cert, denied. 419 U.S. 1108 (1975). Slayton is an adequate and independent state procedural rule that precludes federal habeas review when a petitioner could have raised an issue at trial and on appeal but failed to do so. Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998). In Claim F, Terry failed to raise the issue that the trial court erred because the court should have appointed another attorney; in Claim H, Terry failed to raise the issue that the trial court erred in permitting biased jurors to hear his case; and in Claim I, Terry failed to raise the issues that the trial court erred when (1) the court failed to appoint substitute counsel to advise Terry on whether he should waive counsel's conflict of interest, and (2) because the court permitted the public defender's office to withdraw from representing the Commonwealth's witness instead of requiring the office to withdraw from representing Terry. Terry fails to show cause for these defaults, or a miscarriage of justice. Therefore, the court grants the respondent's motion to dismiss these parts of Claims F, H, and I as procedurally barred from federal habeas review.

         III. Standards of Review

         To obtain federal habeas relief, Terry 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."[7]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 ...


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