United States District Court, W.D. Virginia, Roanoke Division
FENTON L. TERRY, Petitioner,
LESLIE FLEMING, Respondent.
Michael F. Urbanski United States District Judge.
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.
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.
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. 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.
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.
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.
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.
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. 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.
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.
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.
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.During police questioning, Hayes denied
knowing Terry, denied borrowing a vehicle and/or cell phone
from Terry, and denied killing Stokes.
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
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.
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.
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.
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
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
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
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'
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.
moves to dismiss Terry's claims as procedurally barred
and/or without merit, and Terry has responded to the motion.
Exhaustion and Procedural Default
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
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
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." 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.
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.
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.
Standards of Review
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
(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