United States District Court, E.D. Virginia, Richmond Division
Hannah LauckUnited States District Judge
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.
THE REPORT AND RECOMMENDATION
Report and Recommendation ("R&R"), the
Magistrate Judge made the following findings and
raises the following claims for relief:
Claim One: Saunders's rights under the Fourth
Amendmentwere 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
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 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
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
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 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
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
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.)
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)).
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:
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
Therefore, we do not consider the merit of this issue because
appellant waived any objection to the Commonwealth's
(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.)
August 11, 2014, Saunders filed a petition for a writ of
habeas corpus with the Circuit Court, wherein he raised the
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
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
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 ...