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Saunders v. Clarke

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

March 22, 2017

HAROLD CLARKE, Respondent.


          M. Hannah LauckUnited States District Judge

         Anthony Roy Saunders, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition, " ECF No. 1). On January 12, 2017, the Magistrate Judge issued a Report and Recommendation wherein he recommended that the Court deny the § 2254 Petition. Saunders has filed Objections. (ECF No. 26.) For the reasons that follow, the Objections (ECF No. 26) will be OVERRULED and the Report and Recommendation (ECF No. 22) will be ACCEPTED and ADOPTED.


         In his Report and Recommendation ("R&R"), the Magistrate Judge made the following findings and recommendations:

         Saunders raises the following claims for relief:

Claim One: Saunders's rights under the Fourth Amendment[1]were violated when the prosecution admitted into evidence a text message when no warrant had been issued for obtaining the text message. (§ 2254 Pet. 7.)
Claim Two: Saunders's constitutional rights were violated when the trial court failed to declare a mistrial after the prosecution introduced evidence regarding obtaining Saunders's DNA which indicated that Saunders was incarcerated when the sample was taken. (Id. at 9.)
Claim Three: "The trial court did not have jurisdiction to try Saunders for first degree murder, attempted robbery, [and] conspiracy to commit robbery because no elements of the statutes exist in this case." (Id. at 10.)[2]

         Respondent moves to dismiss. For the reasons that follow, it is RECOMMENDED that the Court DISMISS Claims One and Two as procedurally defaulted and DISMISS Claim Three for failure state a viable basis for § 2554 relief. It is further RECOMMENDED that the Court GRANT the Motion to Dismiss (ECF No. 14) and DENY the § 2254 Petition.

         A. Procedural History

         Following a jury trial in the Circuit Court for the City of Chesapeake ("Circuit Court"), Saunders was convicted of murder, attempted robbery, two counts of use of a firearm in the commission of a felony, and conspiracy to commit robbery. (ECF No. 16-1, at 1.) The Circuit Court sentenced Saunders to a 31-year term of imprisonment. (Id. at 2.) Saunders appealed.

         1. Direct Appeal

         On appeal, Saunders challenged the sufficiency of the evidence. (ECF No. 16-2, at 1.) The Court of Appeals of Virginia aptly summarized the abundant evidence of Saunders's guilt as follows:

At about 9:30 p.m. on September 14, 2010, Richard Emerle was in a room at the Budget Lodge Motel in Chesapeake with Conell Darden and another individual. After a telephone call, Darden advised that he was expecting someone named "Cobb" to arrive at the door. Emerle was seated beside the door. Emerle answered a knock at the door and admitted Deon Cobb, whom Emerle did not know. Cobb and Darden had a brief conversation. As Cobb was preparing to leave, Emerle got up to open the door for him. Cobb said, "That's okay. I got it." When Cobb turned the door handle the door came "flying open" and two gunmen appeared.
One of the gunmen entered the room and demanded money, Darden said he did not have any money. When the gunman persisted in his demand, Darden pointed to a dresser drawer and said it was inside. As the gunman turned toward the dresser Darden tried to tackle him. The gun fired, striking Darden in the chest. The gunman and the other armed individual fled from the scene.
The police arrived at the motel room at 9:37 p.m. in response to a 911 call placed by Emerle. Darden was transported to the hospital for emergency medical treatment, but he subsequently died from the gunshot wound to his chest.
During his investigation regarding the shooting, Detective James Thomas examined Cobb's cellular telephone. At 10:58 p.m. on September 14, 2010, Cobb's phone received a text message stating, "[W]ipe that draw off 4 me." The message was sent from a phone with the number 419-0926.
Although the device was registered to appellant's thirteen-year-old son, appellant often used the phone with the number 419-0926 to communicate by text message with his girlfriend, Shannon Walker, and others. On September 13, 2010, there were nine calls between 419-0926 and Cobb's phone. There were twelve such calls on September 14, 2010 and one call on September 15, 2010.
When questioned by the police on September 15, 2010, Cobb identified appellant as the one who shot Darden. At trial, however, Cobb testified that he had identified appellant only because the police officer told him to do [so]. Thomas disputed that he told Cobb to identify appellant, and said he had never heard appellant's name until Cobb revealed it.
Video taken by a surveillance camera showed Cobb interacting with two men outside the motel room where the shooting occurred. When Cobb reached the door of the room, he raised his arm. Then, he knocked on the door and was admitted inside.
Monica Harper, the records custodian for Verizon Wireless telephone company, testified regarding a number of text messages received and sent from 419-0926 on September 14, 2010. The messages conveyed that the user of 419-0926 was planning to obtain some money and was trying to recruit another person to do a "sting" with him. After the shooting of Darden occurred, the user of 419-0926 sent text messages to Walker expressing desperation and that he was about to throw away his phone and go into hiding. On the day after the shooting, the user of 419-0926 sent text messages to Walker stating that no one could identify him and that "nobody knew me but deon." He further told Walker to call "Deon's phone" to see who answered. The user of 419-0926 later surmised that the police had "Deon's" phone and that "Deon" might have talked to the police. The Commonwealth proved that two calls from 419-0926 were made within the minute of 9:39 p.m. on September 14, 2010. The calls were routed through a cellular phone tower with coverage within about 200 yards from the Budget Lodge Motel.
Appellant introduced testimony from Walker regarding text messages she and appellant exchanged on September 13, 2010. Walker explained that the messages indicated she and appellant were having problems in their relationship. Walker also explained text messages she sent appellant at 9:53 p.m. and 9:58 p.m. on September 14, stating that she was frustrated by appellant getting himself to places, then asking her to come get him because he had no way back home. Appellant presented testimony that on the evening of September 14, 2010 he was with Walker, and then his uncle in Portsmouth, thus accounting for his whereabouts until 10:10 p.m.
Appellant contends the evidence was insufficient to prove that he conspired to commit robbery and participated in the attempted robbery of Darden. He argues there was no evidence placing him at the crime scene. However, the jury did not accept appellant's alibi evidence....
The Commonwealth's evidence showed that appellant communicated by cell phone with Cobb numerous times on the day the shooting occurred. Appellant had indicated he was going to obtain some money, and was trying to get someone to help him. Surveillance video showed Cobb interacting with two individuals outside the motel before he gained admission to the room. As Cobb was leaving the room, and with the door unlocked, two armed men appeared. One of them, whom Cobb identified as appellant, demanded money from Darden. Appellant shot Darden when Darden tried to tackle him. Just after the shooting occurred, the phone appellant had been using made two calls that were routed through a cell tower in the vicinity of the motel. Later, appellant asked Cobb to "wipe the draw" and thus remove potentially incriminating evidence that appellant could have left behind in the motel room. Moreover, the text messages Walker subsequently received from appellant implicated him as the shooter. Cobb identified appellant to the police as the shooter. Considering all the facts and circumstances, the evidence proved beyond a reasonable doubt that appellant entered into an agreement with Cobb to commit robbery, that appellant was the person who shot Darden during an attempted robbery, and that appellant was guilty of the offenses.

(ECF No. 16-2, at 1-4.)

         In addition to the above, Saunders appealed the denial of his motion for a mistrial. (Id. at 4.) That motion was based on the fact that "[o]n the second day of appellant's trial, Bethany Graham, an evidence technician trainee for the Chesapeake police, testified that she went to the city jail to obtain a buccal swab from appellant. At the conclusion of Graham's testimony, appellant moved for a mistrial claiming that he was prejudiced by the implication that he had been in jail before his trial." (Id.) The Court of Appeals of the Virginia found that Saunders had defaulted this claim by failing to make a contemporaneous objection. (Id. at 4-5 (citing Va. Sup. Ct. R. 5A:18)).

         Finally, on appeal, Saunders asserted that the Circuit Court erred by "admitting into evidence the Verizon Wireless records containing the printed contents of the text messages received and sent from the phone with number 419- 0926. Appellant argues admission of the content of the messages violated the best evidence rule and his constitutional right to confront the evidence against him." (Id. at 5.) The Court of Appeals of Virginia rejected this claim, noting:

         Appellant introduced in his case-in-chief Verizon Wireless records containing the contents of text messages sent and received from 419-0926. Appellant introduced the testimony of Walker explaining the text messages from September 13 through September 15, 2010. The evidence introduced by appellant was of the same character and subject to the same objections as the Commonwealth's evidence he seeks to challenge on appeal.

Therefore, we do not consider the merit of this issue because appellant waived any objection to the Commonwealth's evidence.

(Id. at 6 (citation omitted).) Thereafter, the Supreme Court of Virginia refused and dismissed Saunders's petition for appeal to the Supreme Court of Virginia. (ECF No. 16-3, at 1-2.)

         2. State Habeas

         On August 11, 2014, Saunders filed a petition for a writ of habeas corpus with the Circuit Court, wherein he raised the following claims:

Claim A: "Counsel failed to object in a timely manner to a statement made by Ms. Bethany Graham stating 'I went to the jail' to get a D.N.A. sample." (ECF No. 16-4, at 5.)
Claim B: "The Commonwealth knowingly introduced evidence obtained in violation of the petitioner's 4thAmendment right when it introduced the phone record obtained from Verizon." (Id.)
Claim C: "The Commonwealth violated the petitioner's 6th & 14th Amendment rights when it entered into evidence the phone records illegally obtained." (Id.)
Claim D: "The Commonwealth violated the petitioner's 14thAmendment right when it introduced hearsay evidence without allowing the petitioner to question the others of the text." (Id.)
Claim E: "Counsel for the petitioner failed to perfect the petitioner's appeal when he filed the assignment of error wrong, preventing the petitioner's claim from receiving a proper review by ...

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